Lawyers for former President Donald Trump asked a federal appeals court on Thursday to lift his gag order in the Jan. 6 case, calling it an unjustified and unprecedented attempt to stifle the 2024 GOP frontrunner’s free speech.
“No court in American history has imposed a gag order on a criminal defendant who is actively campaigning for public office—let alone the leading candidate for President of the United States,” Trump’s attorneys wrote in a Nov. 2 emergency request before the US Court of Appeals in Washington, DC.
“That centuries-long practice was broken on October 17, 2023, when the district court entered its Opinion and Order, A1 (the “Gag Order”), muzzling President Trump’s core political speech during an historic Presidential campaign,” the filing states.
The Trump legal team — headed by Florida attorney John Lauro and Missouri attorney Jon Sauer — requested the federal appeals court to pause the gag order in the 2020 election case and issue its own ruling by Nov. 10.
The attorneys added that they would appeal to the US Supreme Court if the motion was denied.
On Sunday, US District Judge Tanya Chutkan reinstated the gag order after federal prosecutors filed a memo arguing Trump’s “history of using inflammatory language to target” their team, the judge, potential members of the jury and political witnesses had heightened the risk of threats and intimidation.
Special counsel Jack Smith pointed to recent posts on Trump’s social media account — including one suggesting his former White House chief of staff Mark Meadows was granted immunity in exchange for false testimony.
“If you say BAD THINGS about that terrible ‘MONSTER,’ DONALD J. TRUMP, we won’t put you in prison, you can keep your family and your wealth, and, perhaps, if you can make up some really horrible ‘STUFF’ a[b]out him, we may very well erect a statue of you in the middle of our decaying and now very violent Capital, Washington, D.C.,” the former president, 77, said on Truth Social.
“Some people would make that deal, but they are weaklings and cowards, and so bad for the future [of] our Failing Nation. I don’t think that Mark Meadows is one of them, but who really knows?”
Chutkan had initially imposed the gag order after Trump had singled her out as “a radical Obama hack” and Smith as “deranged” and a “thug” in several posts — and said that former Attorney General Bill Barr “should be executed for his many treasonous acts.”
Smith also noted a Texas woman had called Chutkan’s office and threatened to kill her in August if Trump wasn’t re-elected in 2024. That woman was later charged over the threat and her trial began this week.
Trump’s lawyers argued in their filing that federal prosecutors had asked for the gag order without justification and that the threats cited by them were, by their own estimation, “speculative.”
“President Trump has made months of public statements about this case, but the Department of Justice (“the prosecution”) submitted no evidence of any actual or imminent threat to the administration of justice,” they wrote.
The lawyers also said the order “violated the First Amendment rights of President Trump and over 100 million Americans who listen to him,” “restricts core political and campaign speech” and ultimately “silences public criticism of quintessential public figures.”
“Particularly offensive is the Gag Order’s one-sided nature. It prevents President Trump from “targeting” senior public figures—such as Vice President Pence and Attorney General Barr—who routinely attack him and his fitness for the Presidency,” they said.
“And it prevents him from responding to the Special Prosecutor, who has made inflammatory public comments about President Trump, and whose team evidently leaks confidential details to the press.”
Trump is currently leading the 2024 Republican primary by 45 percentage points, according to the RealClearPolitics polling average.
The RealClear aggregator also shows the former president narrowly ahead of President Biden in national popular vote polls.
“The Biden Administration chose to indict President Trump in the middle of campaign season in a politically motivated attempt to derail his candidacy, and the First Amendment allows President Trump to speak out against this unconstitutional tyranny,” campaign spokesman Steven Cheung said in a statement.
“The voters of America have a fundamental right to hear the uncensored voice of the leading candidate for the highest office in the land.”
Trump lawyers were unsuccessful with an earlier request that the former president’s trial on four counts related to his attempts to overturn the 2020 election be moved past Election Day 2024.
The former president has pleaded not guilty and faces up to 55 years in prison if convicted on all charges.