Prosecutors in the federal election subversion case against Donald Trump are seeking a court order that would prevent him from making “inflammatory” and “intimidating” statements in public about witnesses, lawyers and the judge, arguing his comments risk intimidating potential jurors and promoting harassment.
Special Counsel Jack Smith’s motion, filed Friday, stops short of asking for a full gag order on Trump. But it said a “narrow, well-defined” restriction on his public comments was necessary to preserve the integrity of the case.
“The defendant’s repeated, inflammatory public statements regarding the District of Columbia, the Court, prosecutors, and potential witnesses are substantially likely to materially prejudice the jury pool, create fear among potential jurors, and result in threats or harassment to individuals he singles out,” prosecutors wrote.
“Put simply, those involved in the criminal justice process who read and hear the defendant’s disparaging and inflammatory messages … may reasonably fear that they could be the next targets of the defendant’s attacks.”
The motion includes multiple examples of Trump’s social media posts since the four-count indictment was handed down last month that attacked Smith, his team and Judge Tanya Chutkan, as well as potential witnesses like former vice president Mike Pence, who has cooperated with prosecutors. It also details the falsehoods Trump has spread about the case and alleged prosecutorial misconduct.
If the order is granted, Trump would be forced to dramatically limit the type of comments he makes about the case. Such a move would collide with his ongoing mission on the campaign trail as he runs for president once again to paint the 91 criminal charges against him in four different cases as politically motivated.
Still, it was not immediately clear what sanctions Trump could face if he fails to curb his speech, or how Chutkan might enforce such an order.
Trump was characteristically defiant on social media in response to the motion. He took to his Truth Social platform to once again call Smith “deranged,” a term frequently used in the examples included in the motion of Trump’s derogatory comments.
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“They Leak, Lie, & Sue, & they won’t allow me to SPEAK,” Trump wrote.
Trump’s lawyers also oppose the request, prosecutors wrote in their motion, and a Trump spokesperson said in a statement that prosecutors were “corruptly and cynically continuing to attempt to deprive President Trump of his First Amendment rights.”
Prosecutors had foreshadowed for weeks their concerns about Trump’s verbal attacks, but Friday’s request marks the first time they have proposed formal action to rein in speech that they say risks tainting the case and causing court workers and witnesses to live in fear of being targeted.
The motion said Trump’s rhetoric has already had an impact, noting how jurors in the trial of a man convicted of participating in the Jan. 6, 2021, riot at the U.S. Capitol recently sent a note conveying concern that he might have information about their identity.
Beyond the narrow gag order, prosecutors also asked for an order that would prevent the Trump team from contacting residents of Washington, D.C., to conduct polling, jury studies and focus groups without the judge’s permission. The trial in the case is scheduled to begin in the U.S. capital on May 4.
The efforts to weaken faith in the court system, the prosecutors wrote, mirror his attacks on the 2020 election, which he continues to falsely claim that he won.
“The defendant is now attempting to do the same thing in this criminal case — to undermine confidence in the criminal justice system and prejudice the jury pool through disparaging and inflammatory attacks on the citizens of this District, the Court, prosecutors, and prospective witnesses,” they wrote.
Their motion was filed hours after Chutkan granted an earlier government request to protect in a filing the identities of certain witnesses who prosecutors say Trump “targeted with inflammatory public statements and who were subsequently subjected to threats and harassment.” Prosecutors also wanted to keep portions of witness testimony that described those threats and harassment under seal.
The judge granted permission to prosecutors to file a redacted motion publicly, with names and identifying information of individuals who say they’ve been harassed as a result of Trump’s attacks blacked out.
Prosecutors had said the motion they intended to file under seal, which was opposed by Trump’s lawyers, was related to “daily” public statements by Trump that it said it feared would taint the jury pool.
Friday’s motion included redactions of the identities of people, including Republican officials, who experienced harassment after being targeted by Trump in public.
Chutkan’s decision noted concerns she previously expressed that members of the public “who are not bound by (Trump’s) release conditions … might use sensitive witness information in ways that intimidate witnesses or otherwise threaten the integrity of the proceedings.” Trump was told to not contact witnesses in order to secure his release at his arraignment last month.
Both the federal indictment and a similar election subversion indictment filed in Georgia include instances of Republican officials and local election workers facing harassment after being named in public by Trump and his supporters. The Georgia indictment charges three co-defendants with influencing witnesses.
Trump was charged with four criminal counts in the federal case, including conspiracy to defraud the United States, attempting to obstruct an official proceeding, and conspiracy to “injure, oppress, threaten, and intimidate” those exercising the right to vote “and to have one’s vote counted,” according to the document. The last statute is part of the Civil Rights Act.
He has pleaded not guilty to all charges against him.
— with files from the Associated Press
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