In a late-night court filing, former President Donald Trump's attorneys are asking the D.C. Circuit Court of Appeals to stay District Judge Tanya Chutkan's limited gag order in the D.C. 2020 election interference case brought by Special Counsel Jack Smith.
Chutkan's order, Trump's lawyers allege, is "muzzling President Trump's core political speech during an historic Presidential campaign."
His attorneys called Judge Chutkan's recently reinstated gag order move unprecedented, sweeping, and "viewpoint based."
The prosecutors and potential witnesses Chutkan has barred Trump from publicly targeting are high-level government officials, the filing argues and are thus connected to the campaign. Those officials, Trump contends, are unfairly shielded from criticism as a result of the order. Chutkan said in her order that Trump may not speak about prosecutors working on the case, court staff and potential witnesses.
The defense argues the gag order not only unconstitutionally restricts Trump's speech during a campaign, but affects the rights of his supporters to hear him.
"This right of listeners to receive President Trump's message has its 'fullest and most urgent application precisely to the conduct of campaigns for political office,' especially for the Presidency," Trump's attorneys argue.
Trump asked the court to make a decision by Nov. 10. That is just eight days away, and so far, it doesn't appear that a three-judge panel has been assigned to consider the case.
Specifically, the motion asks the appeals court to stay the gag order because of Trump's objections, to immediately and administratively pause the order while the longer stay is considered, and if those requests are rejected, his lawyers are asking for a writ of mandamus, an order from the appeals court to Chutkan to reverse her ruling on the stay.
The Justice Department opposes the requests and has consistently pushed the courts to keep the gag order in place.
Trump's motion — which was widely expected — follows Chutkans rejection of a similar request to stay the gag order. The judge temporarily put the ruling on hold as she considered the request, but ultimately decided that it should stay in place.
Smith's team originally asked the judge to restrict the former president's speech during pre-trial litigation, citing what prosecutors alleged were the potential dangers his language posed to the administration of justice and the integrity of the legal proceedings.
Chutkan only partially granted the government request, barring Trump from publicly targeting court staff, federal prosecutors by name, and potential witnesses in the case. The judge said at the time her order was not based on whether she liked the comments in question, but whether they could imperil the future trial. Trump, Chutkan said, was being treated like any other defendant.
Last month, prosecutors suggested that the judge link her limited gag order to the former president's conditions of release, effectively linking his pre-trial liberties with compliance with the court's ruling. Chutkan, however, did not agree and simply reinstated her gag order.
Thursday night's request comes less than 24 hours after Trump's defense team asked Chutkan to put the legal proceedings on hold as she considers the former president's assertions of presidential immunity. His attorneys have argued that the four count indictment against him — which include conspiracy to defraud the US — should be dismissed because the alleged actions were committed while Trump was president.
The former president has pleaded not guilty to all charges and denied wrongdoing.
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