Lawyers for former President Donald Trump tore into Special Counsel Jack Smith’s defense of the gag order requested for the former president, arguing that the order violates the most basic doctrines of the First Amendment.
Trump’s lawyers, in a 37-page Friday filing, argued that Smith’s request relies on hearsay media reports instead of evidence. The lawyers wrote that Smith and his team of prosecution relied on “naked speculation” as the only piece of evidence supporting their claim that the former president’s statements would lead to the threats, harassment and efforts to intimidate witnesses and parties to the case.

“The Gag Order installs a single federal judge as a barrier between the leading candidate for President, President Donald J. Trump, and every American across the country,” his lawyers wrote. “The district court had no business inserting itself into the Presidential election, just weeks before the Iowa caucuses. The First Amendment does not permit the district court to micromanage President Trump’s core political speech, nor to dictate what speech is sufficiently ‘general’ and what speech is too ‘targeted’ for the court’s liking.”

The former president’s lawyers also blew holes in prosecutors’ claim that Trump’s Aug. 4 Truth Social post where he wrote, “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” incited an individual to threaten Judge Tanya Chutkan. The defense team argued that Trump’s post did not mention the judge’s name and that he only ever mentioned her in any of his posts weeks after the threat was made to the judge.
The defense team argued further that despite months of public commentary on the case by Trump, the prosecution has not identified any instances of supposed threats, harassment or intimidation to any prosecutor, witness, or court staff.

“The prosecution relies heavily on a parallel gag order entered in New York court, which has now been stayed pending appeal,” Trump’s lawyers wrote, referencing a New York appeals judge’s decision to temporarily pause the order in his civil fraud case. “The prosecution contends that silencing a political candidate with over 100 million followers imposes an ‘equal’ injury as silencing a single speaker—an argument that would flunk first-grade math.”
Judges Patricia Millett and Cornelia Pillard, Obama appointees, and Judge Bradley Garcia, a Biden appointee, will hear oral arguments for Trump’s appeal of the order on Monday at the D.C. Circuit Court of Appeals.