WASHINGTON (AP) — Federal prosecutors and lawyers for Donald Trump will argue in court Monday over a proposed gag order aimed at reining in the former president’s diatribes against likely witnesses and others in his 2020 election interference case in Washington.
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.
Trump’s defense has called the proposal an unconstitutional effort to “silence” his political speech as he campaigns for the Republican presidential nomination in 2024.
“This desperate effort at censorship is unconstitutional on its face,” his lawyers wrote in court papers.
The gag order fight underscores the unprecedented complexities of prosecuting the former president as he tries to retake the White House while fighting criminal charges in four cases. And it raises tough questions for the judge, who has to balance Trump’s First Amendment rights to defend himself publicly with a need to protect the integrity of the case.
It 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.
It’s not clear 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 President Joe 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 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, who was appointed by President Barack Obama, 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 retiring chairman of the Joint Chiefs of Staff, had committed treason and should be executed.
Prosecutors have said their proposal would not impact Trump’s ability to campaign or 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.