Prosecutor says gag order in Donald Trump election interference case wouldn't affect ability to campaign

Former U.S. President Donald Trump arrives to deliver remarks at a rally hosted by Club 47 USA at the Palm Beach County Convention Center on October 11, 2023 in West Palm Beach, Florida. (Photo by Alon Skuy/Getty Images)

A federal prosecutor on Monday pressed the judge overseeing Donald Trump's election interference case in Washington to impose a gag order aimed at reining in the former president's diatribes against likely witnesses and others, saying the restrictions would not impact his abilities to campaign.

In pressing U.S. District Judge Tanya Chutkan to impose the narrow gag order, special counsel Jack Smith’s team has accused the Republican of using increasingly incendiary rhetoric to try to undermine the public's confidence in the justice system and taint the jury pool.

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"We have no interest in stopping the defendant from running for office or defending his reputation, nor does our proposed order do this," prosecutor Molly Gaston said.

The gag order proposal underscores the unprecedented complexities of prosecuting the GOP presidential primary front-runner, who has made the line of attack central to his campaign. And it presents the biggest test yet for Chutkan, who must balance Trump’s First Amendment right to defend himself publicly with the need to protect the integrity of the case.

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It’s the beginning of what could be an extraordinary fight over what limits can be placed on the speech of a defendant who is also running for America’s highest public office. Any gag order Chutkan imposes is likely to be challenged on appeal and may ultimately end up before the U.S. Supreme Court, legal experts have said.

While ending the stream of Trump’s harsh language may make the case easier to manage, it could also fuel Trump’s claims of political persecution. Trump's campaign has already seized on the proposed gag order in fundraising appeals, and Trump has falsely characterized it as an attempt to prevent him from criticizing President Joe Biden.

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Trump’s defense has called the gag order request unconstitutional and a "desperate effort at censorship."

The hearing comes on the heels of the judge overseeing Trump's civil fraud trial in New York imposing a more limited gag order prohibiting personal attacks against court personnel following a social media post from Trump that maligned the judge’s principal clerk.

Prosecutors are asking Chutkan to bar Trump and lawyers from making statements "that pose a substantial likelihood of material prejudice to this case," including inflammatory or intimidating remarks about witnesses, lawyers and other people involved in the case.

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It’s unclear whether Chutkan will issue a ruling on Monday. Chutkan has said Trump does not have to attend the hearing.

It's the first time the lawyers will appear before Chutkan since she denied Trump's request to recuse herself from the case, which alleges Trump illegally schemed to overturn his 2020 election loss to Biden. Trump has denied any wrongdoing.

The defense had claimed Chutkan's comments about Trump in other cases raised questions about whether she had prejudged his guilt. But Chutkan, who was appointed by President Barack Obama, said her comments were mischaracterized and there was no need for her to step aside.

Trump has frequently used social media to attack Chutkan, prosecutors, likely witnesses and others despite warnings from the judge that inflammatory comments could force her to move up the trial currently scheduled to begin in March.

Prosecutors noted in a recent motion that Trump's incendiary rhetoric has continued even after their initial gag order request. They cited critical comments about witnesses referenced in the indictment — such as former Attorney General William Barr — and a social media post suggesting that Mark Milley, the retired chairman of the Joint Chiefs of Staff, had committed treason and should be executed.

Prosecutors have said their proposal would not impact prevent him from publicly declaring his innocence. In court papers, they wrote that Trump is demanding "special treatment" by claiming "he should have free rein to publicly intimidate witnesses" and disparage others involved in the case.

"In this case, Donald J. Trump is a criminal defendant like any other," Smith's team wrote.

Richer reported from Boston.