Special Counsel Jack Smith Seeks ‘Narrowly Tailored’ Gag Order Against Trump

Mr. Smith is prosecuting a case against President Trump for challenging the 2020 presidential election.

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

Special counsel Jack Smith accused former President Donald Trump of engaging in a “public disinformation campaign regarding the 2020 presidential election,” and is seeking a “narrow, well-defined restriction” on what he can say.

Mr. Smith is requesting Judge Tanya Chutkan to issue a “narrowly tailored” order to limit what public statements President Trump is allowed to make, and to review any pre-trial surveys, polls, focus groups, or other similar studies conducted by either side.

Mr. Smith is prosecuting a case against President Trump for challenging the 2020 presidential election, arguing that he went too far and “defrauded” citizens in his bid to delay the electoral vote certification. President Trump was charged with four counts of conspiracy and obstruction and pleaded not guilty.

Judge Chutkan—who is presiding over the case—is known for her harsh sentencing in other Jan. 6, 2021-related cases. President Trump has requested that she recuse herself, while Mr. Smith has argued that there is “no valid basis“ for her to step down from the case.

President Trump has decried the election case against him as “election interference” at the hands of a Department of Justice that answers to his political rival, President Joe Biden. The incumbent president has remained silent on the matter of President Trump’s indictments, opting instead to attack his economic policies.

In the new request, Mr. Smith is arguing President Trump’s comments may be influencing potential jury members in his favor and should be stopped.

“The defendant has repeatedly and widely disseminated public statements attacking the citizens of the District of Columbia, the Court, prosecutors, and prospective witnesses,” he wrote, arguing that President Trump’s statements will “undermine the integrity” of the case and “prejudice the jury pool.”

Truth Social Posts

The proposal cites at least 10 of President Trump’s Truth Social posts, including several where he commented on news events such as remarks former Vice President Mike Pence made, how former New York City Mayor Rudy Giuliani, a co-defendant of his in a state criminal case in Georgia, was booked in Fulton County, Georgia, and a media interview clip of former Attorney General Bill Barr.

The prosecution notes that these people may be potential witnesses, and these posts are an attempt to bolster or attack them, and influence a jury’s opinion before they take the stand.

It also includes posts President Trump made about Mr. Smith and Judge Chutkan, such as one stating “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.”

The prosecutors allege that “the defendant has spread knowingly false accusations of misconduct against a prosecutor in the Special Counsel’s Office,” and that these are posts attacking, undermining, and attempting to intimidate prosecutors.

The proposal argues these are “false and disparaging claims” in an attempt “to undermine confidence in the justice system.”

‘Public Attacks’

The special counsel’s request for a protective order restricting what President Trump can say began after President Trump made an Aug. 4 post on Truth Social: “If you go after me, I’m coming after you!” After the post, he shared campaign videos that targeted those prosecuting cases him, including Mr. Smith.

“He has made good on his threat,” the filing reads. “Since the indictment in this case, the defendant has spread disparaging and inflammatory public posts on Truth Social on a near-daily basis.”

They argue the “public attacks” are an attempt to prejudice potential jurors “against the Government in advance of trial,” referencing a post where President Trump said Mr. Smith’s office was a “team of thugs.”

They add that President Trump is making these posts because he knows he cannot say these things in court.

“Through such posts, the defendant is attempting to submit his false and inflammatory claims to the public and jury pool outside of court, because he knows that any such claims made before the Court in the form of motions to suppress or of vindictive prosecution will fail because they must be supported by evidence—of which there is none,” they wrote.

The prosecution is also alleging that President Trump’s posts “have already influenced the public.”

“The Special Counsel has been subject to multiple threats,” they added.

Protective Order

Mr. Smith’s office already previously requested a protective order that would restrict what President Trump can say about the case, as well as what information he could access.

Judge Chutkan approved a limited order that did not restrict what information President Trump could review, but prevented him from sharing sensitive information. The order allowed the DOJ to mark several types of materials as sensitive, including documents that had been classified by any executive branch agency.

President Trump is currently campaigning to run for reelection in 2024, and speaks publicly often at events and media appearances, in addition to his social media posts.

The former president’s attorneys declined to comment.