Trump Says Special Counsel’s Requested Gag Order Would Violate His Free Speech Rights

Former President Donald Trump pauses for cheers from the crowd before speaking as the keynote speaker at the 56th Annual Silver Elephant Dinner hosted by the South Carolina Republican Party in Columbia, S.C., on Aug. 5, 2023. (Melissa Sue Gerrits/Getty Images)

Former President Donald Trump said Monday that he should not be subjected to a gag order requested by special counsel Jack Smith as it would limit his free speech rights.

Mr. Trump made the remark in a post on social media on Monday morning as his legal team faces a judge-imposed 5 p.m. deadline later in the day to respond to a request by Mr. Smith for a protective order that would limit what information the former president can publicly share in the case.

The case relates to the Jan. 6, 2021, Capitol breach, in which Mr. Trump is accused of multiple felonies in connection with his challenges to the 2020 presidential election.

“No, I shouldn’t have a protective order placed on me because it would impinge upon my right to free speech,” Mr. Trump wrote in the message.

Calling the special counsel “deranged,” Mr. Trump said that it’s Mr. Smith and the Department of Justice (DOJ) that should be subjected to a gag order “because they are illegally ‘leaking’ all over the place!”

While Mr. Trump did not specify what leaks he was referring to, there have been reports of this taking place, such as the leaking in March of a sealed opinion from a judge that alleged Mr. Trump intentionally lied to his own counsel about classified documents found at his Mar-a-Lago estate.

Protective Order

Mr. Trump faces a number of legal cases, which he has called an attempt by his political opponents to hamper his chances at victory in the 2024 presidential election.

In this particular case, Mr. Smith has charged the former president with one count of conspiracy to defraud the United States, one count of conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding—the certification of the electoral vote—and conspiracy against the rights of citizens.

Mr. Trump has pleaded not guilty and has called the investigation an act of election interference meant to hamstring his 2024 presidential campaign.

A day after Mr. Trump pleaded not guilty to the criminal charges filed by Mr. Smith, he took to social media to state, “If you go after me, I’m coming after you!”

Mr. Smith responded to Mr. Trump’s social media post by asking U.S. District Judge Tanya Chutkan, an appointee of former President Barack Obama, to issue a protective order that would restrict what Mr. Trump can share publicly about the case and evidence.

“Such a restriction is particularly important in this case because the defendant has previously issued public statements on social media regarding witnesses, judges, attorneys, and others associated with legal matters pending against him,” Mr. Smith wrote in a filing (pdf), citing the Truth Social post.

“If the defendant were to begin issuing public posts using details—or, for example, grand jury transcripts—obtained in discovery here, it could have a harmful chilling effect on witnesses or adversely affect the fair administration of justice in this case,” Mr. Smith said, adding that such posts may influence jurors.

A spokesperson for Mr. Trump responded to the filing by suggesting that the post was not a retaliation against Mr. Smith’s charges.

“The Truth post cited is the definition of political speech, and was in response to the RINO, China-loving, dishonest special interest groups and Super PACs, like the ones funded by the Koch brothers and the Club for No Growth,” the spokesperson said.

Recusal Request

Mr. Trump’s legal team filed a motion asking for more time to review Mr. Smith’s request for a protective order. But Judge Chutkan on Aug. 5 denied that request, giving Mr. Trump’s legal team until 5 p.m. on Aug. 7 to respond.

Following Judge Chutkan’s denial of an extension, Mr. Trump on Aug. 6 issued a call for her recusal and a change in venue for the trial.

“There is no way I can get a fair trial with the judge ‘assigned’ to the ridiculous freedom of speech/fair elections case,” Mr. Trump wrote in a post on Truth Social.

“Everybody knows this, and so does she! We will be immediately asking for a recusal of this judge on very powerful grounds, and likewise for venue change, out [of] D.C.”

Mr. Trump has previously raised concerns about not being able to get a fair trial in Washington.

On Monday, Mr. Trump reiterated his call for Judge Chutkan to be recused from the case.

“Deranged Jack Smith is going before his number one draft pick, the Judge of his ‘dreams’ (who must be recused!), in an attempt to take away my first amendment rights - This, despite the fact that he, the DOJ, and his many Thug prosecutors, are illegally leaking, everything and anything, to the Fake News Media!!!” Mr. Trump wrote.

‘Right to Know’

On Sunday, Mr. Trump’s attorney said the former president’s legal team opposes the protective order, teeing up a likely filing of a formal response by the 5 p.m. deadline on Monday.

Attorney John Lauro told CNN’s “State of the Union” on Sunday that the gag order requested by Mr. Smith should not be imposed as that information could be important for the public to be aware of in the run-up to the 2024 presidential election.

“The press and the American people in a campaign season have a right to know what the evidence is in this case provided that this evidence is not protected otherwise,”  Mr. Lauro told the outlet. “So, we’re going to oppose it.”

In their response to Mr. Smith’s request for the order, Mr. Trump’s team had requested until Aug. 10 to respond to the request to ensure “adequate time to prepare a fulsome response,” adding that the issue, if given time, could be resolved “without court intervention.”

Judge Chutkan denied that request.

Naveen Athrapully contributed to this report.