Federal prosecutors have asked a judge to restrict what Donald Trump is allowed to say about the criminal case against him over election interference, arguing that the former president’s public attacks on the prosecution risk prejudicing the pool of potential jurors in Washington and intimidating witnesses.
Special Counsel Jack Smith’s office argued in a Friday court filing that Trump’s public statements "attacking the citizens of the District of Columbia, the Court, prosecutors, and prospective witnesses” threaten "to undermine the integrity of these proceedings.”
They’re specifically asking for an order from U.S. District Judge Tanya Chutkan that would cover any statements by Trump about the identity or credibility of prospective witnesses and any "disparaging and inflammatory, or intimidating” comments about anyone involved in the case and potential jurors.
Although judges have discretion to restrict what parties say in criminal cases to ensure a fair trial, those orders are supposed to be rare. Legal experts have said that any effort to limit Trump’s public commentary — often referred to as gag orders — would enter murky First Amendment territory given his status as a presidential candidate and surely trigger a fierce court fight.
Trump spokesperson Steven Cheung released a statement accusing the Justice Department of "corruptly and cynically continuing to attempt to deprive President Trump of his First Amendment rights.”
The government’s filing noted that Trump’s team had said it will oppose their motion. His response is due Sept. 25.
The motion features quotes and screenshots of Trump’s online posts since he was charged last month in Washington with conspiring to obstruct the 2020 presidential election. The statements they highlighted included: "IF YOU GO AFTER ME, I’M COMING AFTER YOU!” saying the system is "rigged” against him, calling Chutkan "biased,” describing the nation’s capital as "filthy and crime ridden,” and making disparaging remarks about potential witnesses such as former Vice President Mike Pence.
Prosecutors argued that Trump’s "relentless public posts marshaling anger and mistrust in the justice system, the Court, and prosecutors have already influenced the public.” They noted the recent arrest of a person charged with making "racist death threats” against Chutkan and threats made against Smith, and said potential jurors could "reasonably fear that they could be the next targets of the defendant’s attacks.”
Prosecutors previously had raised concerns about Trump’s frequent statements criticizing the case, and Chutkan had warned Trump against making "inflammatory statements” that could make it harder to seat a jury. But in the weeks following his August indictment, she didn’t impose any special limits on what he was allowed to say pending trial.
At an Aug. 11 hearing, the judge had said she would ensure Trump had the same rights as other defendants, but that she also was prepared to take "whatever measures are necessary to safeguard the integrity of these proceedings.”
Trump recently filed a request to disqualify Chutkan from the case, arguing she’d made "negative” comments about the former president in other cases involving individuals charged in the Jan. 6, 2021, attack on the U.S. Capitol. The government is opposing that request.
If Chutkan grants the government’s request, it wouldn’t be the first time Trump has faced a judicial order to watch what he says. In May, a New York judge restricted Trump from disclosing information about witnesses and evidence in a separate criminal case accusing him of falsifying business records to cover up hush-money payments.