Special counsel Jack Smith argued in new court filings Wednesday that recent comments by Donald Trump show not only that a federal gag order should be reimposed, but that the court should weigh stricter sanctions, including sending him to jail, if he keeps talking about witnesses in his case.
The Wednesday night filing was one of four made by the special counsel’s office on a range of legal issues in preparation for Trump’s planned March trial in D.C. on charges he conspired in late 2020 and early 2021 to obstruct Joe Biden’s electoral victory.
In recent weeks, Trump’s public statements attacking prosecutors, court personnel and others have raised alarms among judges who worry that such verbal broadsides might inspire someone to commit violence against the subjects of Trump’s wrath.
Trump has been indicted four times this year: in D.C. on federal charges of conspiring to obstruct the election results; in Florida on federal charges of mishandling classified papers and obstructing government efforts to retrieve the documents; in Georgia on state charges of plotting to thwart the election results there; and in New York on business fraud charges related to hush money payments in 2016. Trump has denied the charges and accused law enforcement officials of pursuing him in the courts to keep him out of the 2024 presidential race, where he has a commanding lead over all his Republican rivals.
U.S. District Judge Tanya S. Chutkan, who is overseeing the federal case against Trump in D.C., issued a limited gag order against the former president last week, but she temporarily suspended the order while she considered further argument on the matter.
In a lengthy filing, Smith’s office argued she should reinstate the gag order, particularly in light of a social media post this week in which Trump talked about his former chief of staff Mark Meadows, who is a likely witness in the pending trial.
Without the court’s order, prosecutors wrote, there is an “immediate risk” that witnesses’ testimony “could be influenced or deterred by the defendant’s documented pattern of targeting.”
Notably, the filing urged Chutkan to “modify the defendant’s conditions of release by making compliance with the Order a condition or by clarifying that the existing condition barring communication with witnesses about the facts of the case includes indirect messages to witnesses made publicly on social media or in speeches.”
Such a modification, the prosecutors argue, would give Chutkan “compliance measures available under 18 U.S.C. § 3148 in addition to those available as a contempt penalty for violating the Order.” The compliance measures listed in that part of the law are “a revocation of release, an order of detention, and a prosecution for contempt of court.”
“Otherwise, without the Court’s intervention, the defendant will continue to threaten the integrity of these proceedings and put trial participants at risk,” the 32-page filing argues.
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The argument over Trump’s public statements escalated when Trump reacted to an ABC News report that said Meadows had provided testimony against Trump in exchange for immunity.
The former president posted on social media that he doubted Meadows would say what the news report claimed, but added: “Some people would make that deal, but they are weaklings and cowards, and so bad for the future our Failing Nation.”
The new legal argument over the federal gag order came just hours after a New York state court judge overseeing a civil fraud trial against Trump found him in contempt of that court’s gag order and fined Trump $10,000.
Separately, Smith filed a number of other written arguments Wednesday evening in the D.C. case, arguing some demands made by Trump’s lawyers risk pushing his trial back later in 2024.
Trump has repeatedly sought and failed to persuade judges handling his four criminal cases to put off the trials until after next year’s election.
In the D.C. case, Trump has pleaded not guilty, and his lawyers have suggested he may use an “advice of counsel” defense to fight the accusations, arguing that he cannot be convicted of actions he took while being advised by lawyers.
But prosecutors argue in the new filing that Trump’s effort to wait until mid-January to formally notify the court whether he intends to use an advice of counsel defense would probably create a delay in the spring trial, as lawyers then spar over the rules, evidence and procedures for conducting a trial in which Trump’s legal advice will take center stage.
“His proposal is unworkable and will risk substantial delay and disruption,” Smith’s legal team wrote in the filing. Instead, Smith argues, Trump should have to notify the judge and prosecutors by mid-December if he plans to use an advice of counsel defense — suggesting a date of Dec. 18, which is when lawyers are scheduled to turn over their proposed trial exhibits to each other.
Smith’s team also noted that three recent guilty pleas by pro-Trump lawyers — Jenna Ellis, Sidney Powell and Kenneth Chesebro — in the Georgia case could significantly undercut any advice of counsel defense, because those attorneys have now admitted to committing crimes.
Separately, the special prosecutor also filed notice arguing against Trump’s plans for pretrial subpoenas, particularly related to the House Jan. 6 committee that conducted a lengthy investigation and held high-profile hearings examining Trump’s role in inspiring the chaotic riot that took place in 2021 when Congress gathered to confirm Biden’s electoral victory.
Trump’s legal team has sought access to a greater amount of the material gathered by that committee and claimed there are “missing” congressional records that he needs to defend himself.
Prosecutors rejected those claims Wednesday night, calling the Trump demands “a fishing expedition” and “wholly unnecessary” because prosecutors had already provided the defendant the relevant records from the committee.
In a fourth court filing, Smith’s team signaled that the two sides have found some areas of agreement in how to select jurors when the case eventually does go to trial.