The legal team representing former President Donald Trump in his election interference criminal case in federal court are arguing that the gag order the judge in Washington, D.C., placed on him is unconstitutional.
The gag order, which was put in place recently, prohibits Trump from criticizing the special counsel in the case, who Trump says is on a political witch hunt orchestrated by the Biden administration’s Department of Justice.
On Wednesday, Trump’s legal team filed an appeal of the gag order. They are looking to overturn the order, which was handed down in October by Tanya Chutkan, the D.C. District Court judge overseeing the case.
When she issued the order, Chutkan said:
“This is not about whether I like the language Mr. Trump uses. This is about language that presents a danger to the administration of justice.”
Back in September, Chutkan refused to recuse herself from this case, despite her long track record of imposing harsh penalties on January 6 defendants.
In Wednesday’s filing, the legal team for Trump argued that the gag order being imposed on their client was both unconstitutional and unprecedented.
They noted that their client is the first frontrunner for president who has had a gag order placed on them leading up to the next election. Citing the Republican Party of Minnesota v. White Supreme Court case from 2002, his attorneys wrote:
“The Supreme Court has ‘never allowed the government to prohibit candidates from communicating relevant information to voters during an election.’ Accordingly, no court has ever imposed a gag order on the political speech of a candidate for public office, let alone the leading candidate for President of the United States – until now.”
The legal team also argued that, since President Joe Biden is Trump’s chief rival in the 2024 presidential election, he should be able to criticize him and the job his administration is doing.
Trump’s lawyers wrote that the gag order “restricts President Trump from making public statements about key aspects of his prosecution at the hands of the Administration he is seeking to replace – issues that are central to, and inextricably entwined with, the 2024 Presidential campaign.”
They further have argued that the gag order isn’t just unprecedented, but it violates Trump’s First Amendment right to free speech. Not only that, but they argue it violates the public’s rights as way.
“The Gag Order violates President Trump’s most fundamental First Amendment rights. Even worse, it gives no consideration to the First Amendment rights of President Trump’s audience, the American public, to receive and listen to his speech.”
And finally, they have argued that the order is only relying on what’s known as a “heckler’s veto.” In other words, the court is assuming that Trump’s supporters would end up harassing prosecutors based on the statements that Trump might make.
As the lawyers wrote:
“The First Amendment forbids this heckler’s veto, and even if it were legally viable – which it is not – no convincing evidence supports it. President Trump has made many public statements about this case in the three months since his indictment, and yet the Department of Justice (‘the prosecution’) submitted no evidence of any ‘threats’ or ‘harassment’ to prosecutors, witnesses or court staff during that time.”