Special Counsel Jack Smith sought an ostensibly limited gag order to prevent former President Donald Trump from purportedly threatening and intimidating any and all parties to the case involving his post-2020 election activities.

Trump's attorneys just fired back with a reply brief in opposition to what they decried as an overt and unconstitutional attempt by the special counsel to censor and silence the leading Republican presidential candidate's free speech rights in the middle of a campaign, Breitbart reported.

D.C. District Judge Tanya Chutkan, who has already ruled against other motions from Trump's attorneys and seemingly displayed her bias and prejudgment against him in other cases, must now decide whether to grant or deny the special counsel's request to essentially muzzle Trump and prevent any and all critical public discussion of the case.

Smith seeks to silence Trump with gag order

Courthouse News reported on Sept. 15 that a motion for a proposed gag order from Special Counsel Smith was publicly revealed that sought to prohibit former President Trump from making "certain prejudicial extrajudicial statements," such as in social media posts, campaign speeches, or media interviews.

The 19-page motion contained several purported examples of Trump's "inflammatory" rhetoric and hyper-critical comments about the criminal charges, the court, the judge, the prospective jury, the prosecutors, and potential witnesses, and argued that Trump's criticisms amounted to unlawful threats and intimidation against others.

"Like his previous public disinformation campaign regarding the 2020 presidential election, the defendant’s recent extrajudicial statements are intended to undermine public confidence in an institution -- the judicial system -- and to undermine confidence in and intimidate individuals -- the court, the jury pool, witnesses and prosecutors," the motion stated.

In calling for a gag order, the filing further stated, "The Government’s proposed order specifies that such statements would include (a) statements regarding the identity, testimony, or credibility of prospective witnesses; and (b) statements about any party, witness, attorney, court personnel, or potential jurors that are disparaging and inflammatory, or intimidating."

Trump's attorneys respond to Smith's "transparent gamesmanship" in seeking a gag order

In a 25-page response brief, Trump's attorneys immediately came out swinging and wrote, "On August 1, 2023, the prosecution publicly released a forty-five-page speaking Indictment that read very much like a campaign press release. As if the Indictment’s media talking points were not enough, prosecutor Jack Smith then held a press conference to deliver an incendiary attack upon President Trump, falsely claiming that he 'fueled ... an unprecedented assault on the seat of American democracy.'"

"This inflammatory rhetoric, which violated long-standing rules of prosecutorial ethics, was then repeated daily by media publications across the country," the motion continued. "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. The Court should reject this transparent gamesmanship and deny the motion entirely."

The filing went on to assert that the special counsel's requested gag order offered no real evidence of actual threatening or intimidating statements from Trump -- much less a "clear and present danger" of such -- and merely offered up claims of the potential for threats and intimidation that, in the view of the defense, were little more than Trump's First Amendment-protected right to freely and even provocatively criticize the government and its institutions arrayed against him.

"Worse, the Proposed Gag Order lacks any semblance of narrow tailoring, sweeping in, for instance, all 'disparaging' statements about any 'potential witness,' regardless of subject, and including individuals who are actively waging political campaigns against President Trump," the attorneys wrote. "And it does so in a unilateral way, preventing President Trump from defending himself in the political arena, while giving President Biden and his surrogates (including those in the corporate media) free reign to say whatever they want."

Proposed gag order is a "desperate effort at censorship" that is "unconstitutional on its face"

Summarizing their arguments in opposition to the special counsel's proposal, Trump's attorneys concluded, "At bottom, the Proposed Gag Order is nothing more than an obvious attempt by the Biden Administration to unlawfully silence its most prominent political opponent, who has now taken a
commanding lead in the polls."

"Indeed, this very Motion came on the heels of adverse polling for President Biden. His administration’s plan is quite simple: unleash a 45-page speaking indictment, discuss and leak its talking points in the press, and then cynically attempt to invoke the Court’s authority to prevent President Trump and those acting on his behalf from presenting his side of the story to the American people during a political campaign," the filing added. "This desperate effort at censorship is unconstitutional on its face."

It remains unclear how Judge Chutkan will rule on the special counsel's proposed gag order, but it is worth noting that just two days after that fiery response from Trump's attorneys was filed, The Hill reported that the judge had flatly rejected an earlier motion from Trump's team seeking her recusal from the case in light of her seemingly apparent bias and prejudgment against the former president as revealed in statements made in other cases.