Federal prosecutors and lawyers for former President Donald J. Trump will square off on Monday over whether a gag order should be put on Mr. Trump to restrict his often threatening statements about his federal indictment on charges of conspiring to overturn the 2020 election.
Gag orders limiting what trial participants can say outside of court are not uncommon. But Mr. Trump’s status as the front-runner for the Republican presidential nomination, and his decision to portray the gag order request as part of an effort by the Biden administration to stifle a political rival, makes this request by prosecutors especially fraught and complex.
The prosecution and defense are scheduled to gather at 10 a.m. in Federal District Court in Washington. They will argue their positions on the order to Judge Tanya S. Chutkan, who was assigned to the case when Mr. Trump was charged in August. It is possible Judge Chutkan could rule from the bench by the end of the hearing.
Judge Chutkan will have to choose how to enforce a gag order if she imposes one, and how that looks is unclear. The penalties could include fines or even jail time.
The prosecutors working for the special counsel, Jack Smith, first proposed putting a limited gag order on Mr. Trump last month, asserting that his “near-daily” social media attacks on people involved in the case were a menace to witnesses and threatened to taint the pool of jurors who would ultimately sit in judgment of the former president.
Some of the former president’s more outrageous statements seem to have had real-world consequences. One day after he posted a message on his social media platform that read, “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” a Texas woman left a voice mail message for Judge Chutkan, saying, “If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly.” The woman has since been arrested.
Mr. Trump’s lawyers have reacted with outrage to the gag order request, saying that any attempt to “muzzle” him during his presidential campaign would grossly violate his First Amendment rights. “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,” one of the lawyers, Gregory M. Singer, wrote.
Mr. Trump was placed under a very limited gag order early this month by the New York State judge overseeing his civil trial in Manhattan, where he is accused of inflating the value of his properties. That order restricts Mr. Trump from speaking about any people who work on the judge’s staff. The order Judge Chutkan is considering could be significantly broader.
Since mid-September, federal prosecutors and lawyers for former President Donald J. Trump have traded three rounds of court papers in which they laid out arguments both for and against the imposition of a gag order on Mr. Trump.
Here are the documents that will be relevant to today’s hearing on the proposed order.
The special counsel has asked a judge to impose “a narrowly tailored” gag order on the former president in the federal election case against him, citing his “near-daily” social media attacks on numerous people involved in the case.
Read Document 19 pagesIn a 19-page motion, prosecutors said that some of the people Mr. Trump has gone after on social media — including the special counsel, Jack Smith, who has filed two indictments against him — have experienced subsequent threats from others. Mr. Trump’s statements, they said, could also affect witnesses and the potential jury pool for the trial, which is scheduled to take place in Washington starting in March.
The gag order sought by the government would prevent Mr. Trump from making any statements about the identity or testimony of witnesses in the case or any remarks about anyone involved in the proceeding that could be considered “disparaging and inflammatory, or intimidating.”
The former president’s legal team said that an order limiting his public statements about the case would strip him of his First Amendment rights.
Read Document 25 pagesIn a 25-page filing, Mr. Trump’s 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.”
“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 against President Biden,” one of the lawyers, Gregory M. Singer, wrote. “The court should reject this transparent gamesmanship.”
Federal prosecutors reasserted the need to impose a gag order on former President Donald J. Trump in the case accusing him of seeking to overturn the 2020 election. Even after they asked a judge three weeks before to limit his remarks, Mr. Trump has continued to wage “a sustained campaign of prejudicial public statements” against witnesses, prosecutors and others, they said.
Read Document 22 pagesThree weeks after prosecutors first asked for the gag order, they said that Mr. Trump continued to wage “a sustained campaign of prejudicial public statements” against witnesses, prosecutors and others.
Mr. Trump continued to attack potential witnesses in the case like former Vice President Mike Pence and “the former attorney general” — an apparent reference to William P. Barr, and Gen. Mark A. Milley, the former chairman of the Joint Chiefs.
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Representative Marjorie Taylor Greene, the Georgia Republican who is a staunch Trump ally, is standing in line for members of the public who want to get into the courtroom. There may be little to do at her day job up the street with the House paralyzed by the absence of a speaker.
At issue in the hearing on Monday is whether Judge Tanya S. Chutkan should impose a gag order on former President Donald J. Trump in the federal election subversion case.
Gag orders can forbid people to publicly discuss a case or aspects of it. In this dispute, Jack Smith, the special counsel, has asked Judge Chutkan to bar Mr. Trump from publicly making “disparaging and inflammatory or intimidating” public statements about witnesses, the District of Columbia jury pool, or the judge and prosecutors themselves.
Doing so would raise tricky First Amendment issues as Mr. Trump makes another bid for the White House in a campaign that is partly defined by the criminal cases against him — and in which one of his rivals for the Republican nomination, former Vice President Mike Pence, is also a potential witness.
There is not a lot of precedent to guide Judge Chutkan’s decision. Gag orders are more typically imposed on defense lawyers instead of defendants, who under normal circumstances tend not to talk publicly about their cases out of self-interest.
And gag orders are more typically about preventing the jury from being tainted by hearing about the case outside the courtroom, while Mr. Smith has focused on the risk that Mr. Trump’s attacks may inspire threats or violence against participants in the process.
Like any other judicial order, a gag order that is defied can be treated as a matter of contempt of court. To uphold the court’s authority and otherwise maintain order, judges can order contempt proceedings, which could result in a reprimand, fine or imprisonment.
How contempt proceedings work, however, is very complicated. There is no single rule that regulates what should happen, making it hard to say exactly how it would play out if Judge Chutkan were to impose such an order on Mr. Trump and then decide that he had violated it.
There are different rules for situations in which judges have direct knowledge of the misconduct and those in which they have indirectly heard allegations. Judges can also treat contempt as a civil or a criminal matter depending in part on whether their focus is more to coerce future compliance or to punish past disobedience.
Depending on the factors, judges can sometimes summarily impose a fine of up to $1,000 and a sentence of up to six months in prison. But in other cases, they must seek the appointment of a prosecutor and a jury trial would follow.
In the instance of a trial, a federal rule of criminal procedure states that “if the criminal contempt involves disrespect toward or criticism of a judge, that judge is disqualified from presiding at the contempt trial or hearing unless the defendant consents.”
Ever since the special counsel Jack Smith asked a federal judge in Washington to consider a partial gag order on Donald J. Trump, the former president has made it part of his campaign messaging, seeking to turn accusations against him into political gain.
Mr. Smith’s team has asked Judge Tanya S. Chutkan, who will preside over the trial in which Mr. Trump is charged with conspiring to overturn the 2020 election results, to bar Mr. Trump from continuing his attacks on people involved in the case, including prosecutors, the judge, possible witnesses and potential jurors.
But instead of tamping down his public statements since prosecutors made the request last month, Mr. Trump has infused the prospect of a gag order into his fund-raising messages and portrayed it — often in exaggerated and sometimes false terms — as part of an effort by President Biden to silence him and his movement.
“There’s no other way to say it: The fate of the First Amendment is on the line come Monday,” read one fund-raising email sent in Mr. Trump’s name in the days before the hearing, adding that Mr. Biden is “attempting to have me GAGGED in federal court for the remainder of the election.”
The email went on to falsely claim that the gag order being sought by prosecutors would even prevent him from criticizing Mr. Biden. At another point, it said that Mr. Biden is trying to “strip me of my right to free speech.”
In court papers, prosecutors have sought to avoid making the case about Mr. Trump’s First Amendment rights — the indictment in the case even stated that he had the right to lie about the outcome of the election — and have stressed that the gag order request is intended to protect the integrity of the judicial process.
“The government seeks a narrow, well-defined restriction that is targeted at extrajudicial statements that present a serious and substantial danger of materially prejudicing this case,” prosecutors wrote in first seeking the gag order.