Lawyers representing former President Donald J. Trump against federal charges accusing him of seeking to overturn the 2020 election offered an outraged response on Monday to the government’s request for a gag order, saying the attempt to “muzzle” him during his presidential campaign violated his free speech rights.
In a 25-page filing, the lawyers sought to turn the tables on the government, accusing the prosecutors in the case of using “inflammatory rhetoric” themselves in a way that “violated longstanding rules of prosecutorial ethics.”
“Following these efforts to poison President Trump’s defense, the prosecution now asks the court to take the extraordinary step of stripping President Trump of his First Amendment freedoms during the most important months of his campaign against President Biden,” one of the lawyers, Gregory M. Singer, wrote. “The court should reject this transparent gamesmanship.”
The papers, filed in Federal District Court in Washington, came 10 days after prosecutors in the office of the special counsel, Jack Smith, asked Judge Tanya S. Chutkan, who is overseeing the election interference case, to impose a narrow gag order on Mr. Trump. The order, they said, was meant to curb Mr. Trump’s “near-daily” barrage of threatening social media posts and to limit the effect his statements might have on witnesses in the case and on the potential jury pool for the trial. It is scheduled to take place in Washington starting in March.
The lawyers’ attempt to fight the request has now set up a showdown that will ultimately have to be resolved by Judge Chutkan, an Obama appointee who has herself experienced the impact of Mr. Trump’s menacing words.
One day after the former president wrote an online post in August saying, “IF YOU GO AFTER ME, I’M COMING AFTER YOU,” Judge Chutkan received a voice mail message in her chambers from a woman who threatened to kill her. (The woman, Abigail Jo Shry, has since been arrested.)
Gag orders limiting what trial participants can say outside of court are not uncommon, especially to constrain pretrial publicity in high-profile cases. But the request to gag Mr. Trump as he solidifies his position as the front-runner for the Republican presidential nomination has injected a current of political tension into what was already a fraught legal battle.
That tension has only been heightened by the fact that Mr. Trump has placed the election interference case — and the three other criminal indictments he is facing — at the heart of his campaign.
His core political argument — that he is being persecuted, not prosecuted — may be protected in some ways by the First Amendment but has also put him on what could be a collision course with Judge Chutkan. Early in the case, she warned Mr. Trump that she would take measures to ensure the integrity of the proceedings and to keep him from intimidating witnesses or tainting potential jurors.
Almost from the moment Mr. Trump was indicted, his legal team has raised a First Amendment defense, arguing that prosecutors had essentially charged him for expressing his opinions about the 2020 elections. In the new court papers, Mr. Singer repeated those arguments, adding that Mr. Trump’s public statements about the case had not intimidated anyone or prejudiced the jury pool.
He also said the government’s proposed gag order was not narrowly tailored, as prosecutors had claimed. He called it “sweepingly broad” and “undefined,” encompassing any potential witnesses in the case — including those “who are actively waging political campaigns against President Trump.”
“The prosecution would silence President Trump, amid a political campaign where his right to criticize the government is at its zenith, all to avoid a public rebuke of this prosecution,” Mr. Singer wrote.
Mr. Trump has long made a habit of attacking his enemies in vivid and often vicious fashion, making use of social media in particular. But now that he is a defendant, facing four indictments in four cities, his penchant for threatening and bullying those in his way has bumped up against the traditional strictures of the criminal justice system.
In their request for the gag order earlier this month, prosecutors said Mr. Trump had repeatedly referred to Mr. Smith as “deranged” and has called Judge Chutkan “a radical Obama hack” and a “biased, Trump-hating judge.”
They also noted that Mr. Trump has attacked the residents of Washington who one day will be called upon to serve as the jury pool for his trial. In one post, Mr. Trump claimed he would never get a fair hearing from those who lived in the “filthy and crime-ridden” city, which he said “is over 95% anti-Trump.”
Mr. Singer played down the impact of these statements, saying that Mr. Trump had “never called for any improper or unlawful action” and that no one had truly been harmed by his words.
“Every hearing in this case has gone forward on schedule, without incident,” he wrote, “and there is zero reason to believe that will change due to President Trump’s political expressions.”
Picking up an argument it has used before, Mr. Trump’s legal team also sought to paint the prosecution of the former president as a political attack launched by President Biden — even though the case is being led by Mr. Smith, who was appointed by the Justice Department as an independent prosecutor.
“At bottom, the proposed gag order is nothing more than an obvious attempt by the Biden Administration to unlawfully silence its most prominent political opponent, who has now taken a commanding lead in the polls,” Mr. Singer wrote.