The legal team representing Donald Trump on charges that he attempted to thwart the 2020 election results has responded to the prosecution’s gag order request, claiming that the government is infringing upon the former president’s right to free speech.
“In a 25-page filing,” The New York Times reported, “the lawyers sought to turn the tables on the government, accusing the prosecutors in the case of using “inflammatory rhetoric” themselves in a way that “violated longstanding rules of prosecutorial ethics.””
As Gregory M. Singer, one of Trump’s lawyers wrote: “Following these efforts to poison President Trump’s defense, the prosecution now asks the court to take the extraordinary step of stripping President Trump of his First Amendment freedoms during the most important months of his campaign againset President Biden.”
The defense team’s filing comes in response to Jack Smith’s special counsel’s request of Judge Tanya S. Chutkan “to impose a narrow gag order on Mr. Trump.”
“The order, [prosecutors] said, was meant to curb Mr. Trump’s “near-daily” barrage of threatening social media posts and to limit the effect his statements might have on witnesses in the case and on the potential jury pool for the trial,” The Times reported.
The gag order
Gag orders are occasionally issued to restrict what trial participants can say outside of court. But Trump’s case is unique, obviously, in that Trump is a former president and the heavy favorite to win the 2024 GOP nomination. Naturally, the Trump camp is arguing that the prosecution is attempting to inhibit Trump’s ability to campaign – which is consistent with the theory that Biden’s DOJ is targeting Trump for political reasons.
Trump’s “core political argument – that he is being persecuted, not prosecuted – may be protected in some ways by the First Amendment but has also put him on what could be a collision course with Judge Chutkan,” The Times reported.
That Trump’s team is leaning on a First Amendment defense is no surprise. “Almost from the moment Mr. Trump was indicted, his legal team has raised a First Amendment defense, arguing that prosecutors had essentially charged him for expressing his opinions about the 2020 elections,” The Times reported.
Trump’s team has a point. The idea that a campaigning presidential candidate would be restricted from speaking about happenings that are central to the campaign doesn’t quite seem right. Trump should be allowed to make the case that the prosecution is politically motivated rather than legally motivated. And frankly, even if Trump didn’t believe those things, if he were just lying for political reasons – that’s constitutionally protected free speech, too. You can lie. And regardless, who is going to determine whether something is a lie or not? The difference between lying and speaking truthfully hinges upon whether the speaker believes what they are saying. Who is going to determine what the speaker believed?
Trump’s team also took issue with the scope of the proposed gag order, calling it “sweepingly broad” and “undefined.”
“The prosecution would silence President Trump amid a political campaign where his right to criticize the government is at its zenith, all to avoid a public rebuke of this prosecution,” Singer said.
About the Author
Harrison Kass is the Senior Editor and opinion writer at 19FortyFive. An attorney, pilot, guitarist, and minor pro hockey player, Harrison joined the US Air Force as a Pilot Trainee but was medically discharged. Harrison holds a BA from Lake Forest College, a JD from the University of Oregon, and an MA from New York University. Harrison listens to Dokken.
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