Prosecutors urge judge to keep Trump gag order in place ahead of election interference trial

Federal prosecutors late Wednesday urged a judge to lift her initial stay of a gag order limiting President Trump’s speech, arguing he threatens to upend their election interference case with remarks likely to inspire harassment of those involved in it.

Their brief walks through a series of remarks Trump has made since the gag order was put on ice last Friday, including remarks they say were designed to influence the testimony of his former chief of staff.

The timing of the debate over the gag order before Judge Tanya Chutkan is colliding with a civil fraud trial Trump is facing in New York, where a state judge issued his second fine to the former president after he again made comments about a court clerk.

“In the few days since the administrative stay has been in place, the defendant has returned to the very sort of targeting that the Order prohibits, including attempting to intimidate and influence foreseeable witnesses, and commenting on the substance of their testimony,” prosecutors wrote.

“There has never been a criminal case in which a court has granted a defendant an unfettered right to try his case in the media, malign the presiding judge as a ‘fraud’ and a ‘hack,’ attack the prosecutor as ‘deranged’ and a ‘thug,’ and, after promising witnesses and others, ‘IF YOU GO AFTER ME, I’M COMING AFTER YOU,’ target specific witnesses with attacks on their character and credibility, even suggesting that one witness’s actions warrant the ‘punishment’ of ‘DEATH!’” 

The order from Chutkan bars Trump from language that would “target” witnesses in the case, as well as prosecutors and court staff — a decision Chutkan said was necessary to prevent a wave of threats and harassment of those involved in the case and protect “the fair administration of justice” in the high-stakes trial.

The government’s 32-page response is a window into how prosecutors will fight Trump’s challenge of the order as it heads to appeals court. While Chutkan has temporarily stayed her order pending consideration of the issue in a higher court, prosecutors argue the gag order must remain in place while examination of her order proceeds.

The filing also goes beyond defense of a gag order and asks Chutkan to modify Trump’s conditions of release to make explicit that his existing prohibition on communication with witnesses “includes indirect messages to witnesses made publicly on social media or in speeches."

That request comes after Trump turned to social media to dispute an article from ABC News that his former chief of staff Mark Meadows had testified under an immunity deal, with the former president writing that those who would do so are “weaklings and cowards, and so bad for the future [of] our Failing Nation.”

Prosecutors hammered back against arguments from Trump’s legal team that the order is a violation of his First Amendment rights that would hamper his electoral prospects.

“The Order leaves the defendant entirely free to assert his innocence, claim that his prosecution is politically motivated, criticize the platforms and policies of his political opponents, and level all manner of criticism at various institutions and individuals, including the incumbent president and the Department of Justice,” they wrote

“But, like every other criminal defendant, what the defendant may not do is publicly target certain trial participants in order to ‘vilify and implicitly encourage violence against public servants’ or to ‘launch a pretrial smear campaign against ... foreseeable witnesses,’” they added.

It also zeroes in on Chutkan’s use of the word target — language Trump’s team pointed to amid broader argument that the order was too vague.

“The Order is sufficiently clear and does not suffer from vagueness problems. The Order limits the defendant’s ability to ‘target’ certain trial participants—that is, to single them out as 'the object of general abuse, scorn, derision or the like,'” prosecutors wrote, noting reliance on the dictionary definition of the word.

“It limits only the sort of fact-free, disparaging, inflammatory, ad hominem attacks that, as the defendant knows, tend to provoke harassment, threats, and intimidation from his followers.”

Prosecutors also pointed to Trump's conduct in New York, where a judge fined him $5,000 for not removing content from his campaign site attacking a court staffer and then on Wednesday fined him another $10,000 after Trump again appeared to post about the clerk. Prosecutors noted the decision came “after the defendant claimed unconvincingly under oath that he had not been commenting on the court’s clerk, [and] the judge found the defendant not to be credible.”

The government also urged Chutkan to reject the approach pushed by Trump’s team to address any problematic remarks from Trump after the fact.

Prosecutors noted that while some high-profile witnesses might be granted protection from the court, the “defendant’s threats have never been limited to such figures and have always included people like election workers and court personnel who have little ability to avail themselves of similar protections.”

They also argued that taking action after a comment comes too late.

“The First Amendment does not require such an ineffectual approach to protecting the integrity and fairness of the trial,” they wrote.