As an appeals battle quickly builds in Washington, D.C., over whether a narrow gag order imposed on Donald Trump in his election subversion case should remain in place, special counsel Jack Smith fired his opening salvo on Tuesday, urging the court to clearly rejecting the former president’s order, making “scattered” First Amendment invocations and enforcing a gag order that will protect the proceedings, similar to what lower courts have done in other high-profile cases, including the prosecution of Trump ally Roger Stone.
“There has never been a criminal trial in which a court has granted a defendant the unfettered right to argue his case in the media, slander prosecutors and his family, and threaten witnesses: ‘IF YOU COME AFTER ME, I WILL COME.’ AFTER.’ “They” target specific witnesses with attacks on their character and credibility, calling them a “weakling” and a “coward,” and suggesting that another’s actions warrant “punishment” of “DEATH!” Smith wrote Tuesday in a 67-page brief for the appeals court in Washington, D.C., citing only a selection of Trump’s statements on social media or in the press since his indictment on charges of conspiring to overturn the 2020 election results was first announced in August .
The silence order requested by the public prosecutor was temporarily suspended by the appeal court on November 3rd. It was set Oct. 16 by U.S. District Judge Tanya Chutkan after a special counsel convinced her it was necessary given Trump’s regular public outrages.
Chutkan himself, prosecutors reminded the appeals court on Tuesday, received a deeply disturbing death threat from Trump supporter Abigail Jo Shry of Texas after Trump railed against the judge and the prosecution.
Shry called the Black judge an “N-slave” who would be killed if Trump is not re-elected in 2024.
“This incident was part of a year-long pattern in which individuals who have been publicly attacked by the defendant are subjected to harassment, threats and intimidation as a result of the attacks,” Smith wrote.
In this context, the special counsel highlighted the statements of billionaire Trump supporter Anthony Pratt, who explained the delicate method used by the former president. In one 60 minute Australian piece On air just weeks ago, Pratt said of Trump:
“He knows exactly what to say and what not to do to avoid prison, but he comes so close that it looks to everyone like he’s breaking the law,” Pratt said. “Like he wouldn’t go up to someone and say, ‘I want you to kill someone.’ He will say he will send someone to tell someone, to kill someone.”
Ultimately, the gag order issued by Chutkan only prohibited Trump from denigrating witnesses and targeting court employees or prosecutors, but gave him plenty of leeway to publicly criticize the trial venue, Washington, D.C., and the nature of the prosecution itself. In an opening filing with the appeals court last week, Trump’s lawyers said the former president’s speech did not pose a “clear and present threat” to the proceedings and that they would continue their fight to the end if the appeals court did not rule in their favor US Supreme Court.
But prosecutors argue that there is enough case law to support their request, ignoring Trump’s “isolated” attempts to invoke the First Amendment. Part of that precedent was established recently and very publicly in a case involving an equally vocal criminal defendant: Trump ally Roger Stone.
When Stone was indicted in 2019 on charges of obstruction of official proceedings, witness tampering and making false statements to Congress about his role as an intermediary between Trump’s campaign and WikiLeaks, U.S. District Judge Amy Berman Jackson ultimately gagged him. She initially curtly ordered Stone “not to discuss the case in any way” before later imposing a “blanket ban” barring him from using social media to target potential witnesses or court employees, it says Smith’s short notes.
Like Trump turning to the press to make his case, Stone told reporters at BuzzFeed that then-witness Michael Cohen’s testimony was a lie. Stone also reposted images and content aimed at lawmakers on social media, and long before the gag was even deployed, Stone had posted online an image of Judge Jackson with crosshairs near her head New York Times reported in 2019.
Trump’s behavior was similar and equally inappropriate, Smith argued.
Trump does not warrant a “special exception,” and the appeals court should, prosecutors say, consider what the 11th Circuit already found in 2022 Trump vs. the United States.
“Creating a special exception here would contradict our nation’s founding principle that our law applies to ‘all, regardless of number, wealth or rank,'” Smith quoted.
Regardless, despite a limited gag order, Trump could still find ways to at least partially express his feelings about the charges. Prosecutors found that he sent no fewer than 182 messages between the issuance and suspension of the order.
“And in the four and a half days between this Court’s reversal and the issuance of the stay, the defendant posted approximately 128 additional times on Truth Social,” Smith wrote.
Trump has denied any wrongdoing and pleaded not guilty to the allegations in Washington, DC. He has regularly argued that he was not responsible for the events of January 6, 2021, and has unsuccessfully attempted to have the case dismissed on these grounds.
Fully aware of the First Amendment “invocations” that Trump and his lawyers have made in railing against “false” insurrection charges, Smith expressed in Tuesday’s decision that Trump was not charged in the indictment with “incitement.” to insurrection”.
“It is clearly alleged that he is responsible for the events of January 6, 2021, in which lives were lost, blood was shed, portions of the Capitol building were severely damaged, and the lives of members of the House and Senate, as well as…” Aides, Employees and others who worked in the building were at risk,” he wrote.
Oral arguments before the appeal court begin on November 20th.
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