The U.S. Justice Department said former President Donald Trump undermined the 2020 election with inflammatory statements and phony claims of fraud.
Now, prosecutors working for special counsel Jack Smith argue that Trump is trying to do the same thing all over again to derail his criminal trial for alleged election interference.
They’re asking the judge to impose a partial gag order in the case because, they said, Trump’s comments threaten to intimidate witnesses and taint the jury pool. The issue will be at center stage at a hearing before U.S. District Judge Tanya Chutkan on Monday.
“The defendant’s conduct presents a ‘substantial likelihood of material prejudice’ to these proceedings, and the Court can and should take steps to restrict such harmful extrajudicial statements,” wrote senior assistant special counsels Molly Gaston and Thomas Windom.
The prosecutors said there is already evidence that Trump’s remarks outside the courtroom have influenced members of the public, pointing to the arrest of a Texas woman for making “racist death threats” against the judge.
The day after his arraignment in August, Trump posted on social media: “If you go after me, I’m coming after you.” The judge has warned Trump’s attorneys that any misbehavior could lead her to move up the trial date, now set for March 4, 2024, to limit further prejudice to potential jurors.
Since then, Trump has posted that the justice system is “rigged,” that special counsel Smith is “deranged,” that the judge is “a radical Obama hack” and that he can’t get a fair trial in the District of Columbia. Trump has also verbally attacked possible witnesses such as his former vice president, Mike Pence, and his former attorney general, Bill Barr.
Justice Department lawyers have proposed what they call a limited gag order, to cover not just Trump but all the attorneys in the case too. They want the judge to bar out-of-court statements that create a high likelihood of prejudicing the case — things like witness intimidation and remarks that could taint the jury pool. They added in court papers that nothing about their proposal would restrict Trump from referring to documents filed with the judge or making statements that he’s innocent.
One of the cases that the special counsel cites to back up this request is a high-profile prosecution that Judge Chutkan handled a few years ago involving the unregistered Russian agent Maria Butina.
Chutkan did impose a partial gag order in that case. But legal experts said this one is harder, in part because it’s not clear whether Trump will follow the rules and what the judge might do if he crosses the line.
“We all understand, I mean, most of us in normal cases, that the judge has all the control, and for 99.9% of us, an admonition from the court is just kind of followed per se,” said Robert Driscoll, a Washington, D.C., attorney who defended Butina in that earlier case before the judge. “I think in this case, the key question for her is going to be, or what?”
Trump already is operating under a sort of gag order in the ongoing civil fraud trial he faces in New York City. A judge there rebuked him after Trump made baseless accusations against the judge’s law clerk and posted her photo online.
“Personal attacks on members of my court staff are unacceptable, inappropriate, and I will not tolerate them under any circumstances,” that judge, Arthur Engoron, said.
Trump later deleted that social media post. At Monday’s hearing, in Washington, Trump’s attorney John Lauro is expected to fight the imposition of any gag order. In court papers, Lauro called the idea an “unconstitutional prior restraint.” Lauro said that the Justice Department got its say in a 45-page speaking indictment against Trump last summer and that it shouldn’t be allowed to muzzle Trump as he tries to defend himself and campaign for a return to the White House in the 2024 election.
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