Federal prosecutors urged a Washington, D.C., judge to reinstate a limited gag order against former President Donald Trump to keep him from publicly targeting potential witnesses in the special counsel's 2020 election-related case, according to court papers filed late Wednesday.
In the court filing, special counsel Jack Smith's team also argued that Judge Tanya Chutkan should consider making the gag order a permanent condition of Trump's post-indictment release, suggesting that she should effectively tie the former president's pretrial liberties to his cooperation with the court's order.
Earlier this month, Chutkan partially granted the Justice Department's request for restrictions on Trump's public speech about the special counsel's case, barring him from speaking about prosecutors, court staff and potential witnesses.
The judge said at the time that her ruling — which applied to Trump, his attorneys, and government lawyers — was an effort to protect witnesses from being unduly influenced ahead of trial and to shield prosecutors and court employees from being targeted.
"This is not about whether I like the language Mr. Trump uses. This is about language that presents a danger to the administration of justice," Chutkan said earlier this month.
The former president's legal team appealed the matter to a higher court and asked Chutkan to put a hold on her order while it is further litigated. The judge decided last week that she would temporarily stay the gag order while she heard from both sides. In the days that followed, Trump returned to posting about the special counsel and possible witnesses.
Trump's attorneys argued in a filing last week, "No Court in American history has imposed a gag order on a ... defendant who is campaigning for public office-least of all on the leading candidate for President."
But in Wednesday night's filing from the special counsel, prosecutors pushed back. "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,'" they wrote.
Prosecutors specifically highlighted Trump's social media post on Tuesday in which he referenced reports that his former chief of staff Mark Meadows was granted immunity by investigators to speak freely as part of the 2020 election-related probe.
"I don't think Mark Meadows would lie about the Rigged and Stollen 2020 Presidential Election merely for getting IMMUNITY against Prosecution (PERSECUTION!) by Deranged Prosecutor, Jack Smith," Trump wrote in part on social media, "Some people would make that deal, but they are weaklings and cowards, and so bad for the future our Failing Nation... I don't think that Mark Meadows is one of them, but who really knows?"
Smith's team characterized the language as "prejudicial and threatening" and said it risked influencing and intimidating Meadows, who could be a potential government witness at trial.
ABC News reported Tuesday that Meadows was granted immunity in the case and CBS News confirmed the former chief of staff has been speaking with investigators. The special counsel's filing did not address the veracity of the reports.
The former president's language, prosecutors argued, has the possibility of prejudicing the trial — which Chutkan has said will begin on March 4, 2024 — and should be restrained as a result.
Notably, while the filing does not mention the possibility of detention, Smith's team contended that Chutkan could reconsider the boundaries of Trump's pretrial release, which she set after his indictment and alluded to a federal law related to the matter.
"The Court should modify the defendant's conditions of release by making compliance with the [gag] Order a condition or by clarifying that the existing condition barring communication with witnesses about the facts of the case includes indirect messages to witnesses made publicly on social media or in speeches," Wednesday's filing suggested, adding that such alterations would give the judge a great variety of potential punishments should Trump. violate the rules.
The former president's defense team has consistently argued that Trump's ability to speak freely about the case is linked to his candidacy for president and any restrictions on what he can say would impede his ability to run for office.
They argued the gag order Chutkan imposed is "breathtakingly overbroad," based on little evidence, vague in its pronouncements, and meant to prevent Trump from speaking about his political rivals on the campaign trail.
"The indictment herein is of enormous public concern and a central issue in the upcoming election," his attorneys wrote last week. "Thus, President Trump's opinions of the prosecution, the government officials pursuing him, and the witnesses against him are all core political statements entitled to the highest degree of deference."
The Justice Department's filing late Wednesday opposed those characterizations and came on the heels of a ruling by another judge in a separate case in which Trump was held in contempt and fined $10,000 for violating a gag order in a civil trial tied to his real estate empire in New York. The former president briefly took the witness stand to answer questions under oath that did not satisfy the judge in that case, resulting in the penalty.
Trump also received some support from the American Civil Liberties Union, which filed court papers in support of Trump's fight to overturn Chutkan's limited gag order. The ACLU said of Trump, "Much that he has said has been patently false and has caused great harm to countless individuals, as well as to the Republic itself" and noted that some of his words and actions had led to the indictment in this case. Nonetheless, the ACLU said that he retains the First Amendment right to speak, and argued that Chutkan's ruling was vague and violated the Constitution.
In the case before Judge Chutkan, Trump has been charged with four federal counts tied to his alleged conduct after the 2020 presidential election, including accusations that he engaged in an alleged conspiracy to defraud the U.S. The former president pleaded not guilty to the charges and has denied all wrongdoing.