Special counsel Jack Smith requests Trump be banned from talking about witnesses or evidence in Jan. 6 federal case

Former President Donald Trump, a Republican presidential candidate, speaks at a South Dakota Republican Party rally in Rapid City, South Dakota, Sept. 8, 2023.

Jonathan Ernst | Reuters

WASHINGTON — Special counsel Jack Smith on Friday asked a federal judge to bar former President Donald Trump from publicly discussing the testimony and credibility of potential witnesses, or the evidence, in his federal election interference trial in D.C.

The request came in the form of a motion that laid out many of the 2024 Republican presidential front-runner’s most aggressive social media posts in recent months. That included posts in which Trump took aim at likely witnesses, including former Vice President Mike Pence, as well as the judge presiding over the case and the U.S. attorneys prosecuting him.

“The defendant knows that when he publicly attacks individuals and institutions, he inspires others to perpetrate threats and harassment against his targets,” prosecutors wrote.

Since he was indicted, they wrote, Trump has “spread disparaging and inflammatory public posts on Truth Social on a near-daily basis regarding the citizens of the District of Columbia, the Court, prosecutors, and prospective witnesses.”

These posts have already had real-world consequences, they added. Shortly after Trump was indicted, “an individual was arrested because she called the Court’s chambers and made racist death threats to the Court that were tied to the Court’s role in presiding over” Trump’s case.

The only solution, the special counsel argued, was for U.S. District Judge Tanya Chutkan to issue an order holding Trump to the same standards to which his lawyers were being held.

Under these standards, Trump would be prohibited from making public statements about “‘the identity, testimony, or credibility of prospective witnesses’ and the ‘merits of the case or the evidence in the case.'”

Smith argued that this would amount to a “narrow, well-defined restriction.” But if Trump’s past statements are any indication, such a ruling could effectively render a wide range of statements Trump might make in the future about the case in violation of the order and could leave him exposed to additional charges.

By the same token, abiding by such an order, if the judge were to issue it, could significantly alter what Trump says on his social media platform, Truth Social, and at campaign rallies, where he frequently disparages Smith, Chutkan and likely witnesses.

Trump’s trial is scheduled to begin March 4, 2024, one day before the Super Tuesday primary contests, which could effectively hand him the Republican nomination, if current polling trends hold.

Trump’s presidential campaign was quick to respond to the motion, accusing prosecutors of “corruptly and cynically continuing to attempt to deprive President Trump of his First Amendment rights.”

“This is nothing more than blatant election interference because President Trump is by far the leading candidate in this race,” campaign spokesman Steve Cheung said in a statement.

In addition to asking for the “narrow” gag order, prosecutors also asked the court to require that any polling of potential jurors be preapproved by the judge, in order to prevent the defense from sending polls that would have the effect of pushing jurors in Trump’s favor, the same way that pollsters can influence respondents by how they ask questions.

The four-count indictment Smith filed on Aug. 1 charged Trump, and only Trump, with conspiring to defraud the United States and conspiring to obstruct an official proceeding, as well as actually obstructing an official proceeding. Finally, Trump was charged with violating a law that criminalizes conspiring to deprive others of constitutionally protected rights. By seeking to overturn his election loss in 2020 by changing vote totals, prosecutors argued, Trump deprived voters of the right to cast votes that were fairly counted.

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