Trump Gag Order Targets Actions of Others, Not Trump: Attorney

The attorneys wrote that such censorship of a political candidate constituted a ‘heckler’s veto.’

Former President and Republican presidential candidate Donald Trump attends a campaign event in Manchester, N.H., on April 27, 2023. Brian Snyder/Reuters

Attorneys for former President Donald Trump argued that the gag order issued by a federal judge in Washington, was neither “narrow” nor “tailored” and cited reasoning as others’ potential actions rather than any harm the former president could bring himself.

On Saturday, the brief was filed in response to the Department of Justice’s opposition to lifting the gag order while President Trump appeals it.

“It uses undefined, ambiguous terms such as ’target' that arguably (and unconstitutionally) encompass essentially all statements regarding this case, no matter how innocuous, unless they fall within three narrow (and equally vague) safe harbors,” the new filing reads.

Special counsel Jack Smith is prosecuting a case against the former president, alleging he sought to illegally interfere in the 2020 elections through “dishonest” means and “deceit.” President Trump, who is campaigning to run for the presidency again in 2024, has pleaded not guilty to all charges.

The special counsel’s office had proposed a gag order that would limit “inflammatory” remarks, including President Trump’s claims that the prosecution is politically motivated, partisan, and done at the behest of President Joe Biden. They argued it was necessary because President Trump had the potential to influence the public, and therefore potential jurors, in his favor.

Third-Party Actions

After a hearing, Judge Tanya Chutkan indeed issued a gag order, but with different limitations and reasoning. The order prohibited statements that would “target” the prosecution and defense legal teams, court staff, and potential witnesses. It did not elaborate on what constituted targeting these parties. The judge also specified that this would not prohibit statements about President Joe Biden or the government in general, because they were not parties in the case and cited the rationale that these parties could come to harm if targeted in public statements.

President Trump’s attorneys are now arguing that this line of reasoning has proven unconstitutional in Supreme Court rulings.

“The Supreme Court has held, time and time again, that a person may not be prohibited from speaking because of the unsolicited actions of others,” they argued, adding that speech has only been prohibited when it is “directed” to produce criminal activity.

“Even where an audience ’might react with disorder or violence' to a speaker’s statements, the Supreme Court repeatedly rejects government attempts at censorship.”

The attorneys wrote that such censorship of a political candidate constituted a “heckler’s veto.”

They further note that the prosecutors revealed in the reply that they were not arguing for a gag order because of fear of violence but because of “the clear pattern of a portion of the audience agreeing with the defendant’s implicit wishes.”

“President Trump’s speech does not constitute incitement, and the prosecution never contends that it does,” they added.

In several other motions the defense recently filed, attorneys note that though President Trump was never charged with inciting violence, prosecutors have made public statements implying this is a given fact, including in the indictment. They are seeking to strike references to this from the indictment.

Witnesses

The new response also reiterates arguments that there is no evidence President Trump has intimidated witnesses.

“Nor is conceded prosecutorial speculation that some individuals might feel harassed or threatened is hardly a constitutional justification for limiting free speech,” the filing reads. “Without a demonstrable ‘clear and present danger,’ ... or even a ’substantial likelihood of material' harm, the Gag Order will not be upheld on appeal.”

The prosecution had, in its opposition to staying the gag order, noted that the fear of harm or intimidation coming to witnesses was only “speculative.” Defense attorneys argued this was not a good enough reason to limit speech, according to the Constitution.

In a footnote, attorneys reference the recent media reports about a supposed leak regarding Mark Meadows’s deposition with the special counsel’s office.

Mr. Meadows was President Trump’s chief of staff, and reports initially claimed he had agreed to cooperate with prosecutors in exchange for immunity. He and his lawyer gave public statements after the stories were published, stating this was not true. A journalist also later publicly stated that sources had backtracked on their claims about Mr. Meadows.

“If the Gag order had been in effect, President Trump would have been unable to respond to, or rebut, the false claims with his former chief of staff —an issue that is important to many Americans in connection with the 2024 election. The key question is, for what legitimate constitutional purpose?” the new filing reads.

“The Gag Order would not have done anything to prevent a national discussion of this issue during a campaign. Thus, the only thing the Gag Order would accomplish is ensuring that President Trump could not respond to inappropriate prosecutorial or witness leaks, an obviously impermissible and wholly unconstitutional goal.”