The American Civil Liberties Union on Wednesday said it will file an amicus brief arguing the limited gag order imposed on former President Donald Trump in his Washington, D.C., election interference case is unconstitutional.
On the same day, federal prosecutors asked U.S. District Judge Tanya Chutkan to reinstate the currently paused gag order, stating the order is necessary to prevent Trump from targeting witnesses.
Trump "has a demonstrated history of using inflammatory language to target certain individuals in a way that ‘pose[s] a significant and immediate risk’" that witnesses will be intimidated, Special Counsel Jack Smith's team argued in court papers filed Wednesday.
In the ACLU's proposed brief, senior staff attorney Brett Kaufman wrote that Trump has made statements that have been "patently false" and have "caused great harm to countless individuals, as well as to the Republic itself."
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"But Trump retains a First Amendment right to speak, and the rest of us retain a right to hear what he has to say," the brief states.
Trump has used his social media platform, Truth Social, to launch a barrage of insults and criticisms at the prosecutors, judges and witnesses involved in the cases against him.
On Oct. 17, Chutkan imposed a partial gag order on Trump, blocking him from making statements targeting Special Counsel Smith, his staff, witnesses and court personnel.
The judge said the former president is able to criticize the Justice Department in general terms and has the right to post his view that the case against him is politically motivated. However, she also said Trump cannot post attacks against prosecutors or court staff.
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Trump has appealed the order, asserting it violates his free speech rights, and Chutkan on Friday issued a stay pending his appeal. The former president has since returned to posting about the special counsel and witnesses.
The ACLU argues Chutkan's order is too vague on its ban on "targeting" the special counsel, potential witnesses and the "substance of their testimony" because it could be read such that Trump would violate the order by merely mentioning those people.
The civil rights group also suggests the order is too broad because it covers Smith, a public official, and the "substance" of any witnesses' testimony, which will be highly relevant to the 2024 presidential campaign. Trump has a commanding lead in polls of the 2024 Republican presidential primary.
READ THE ACLU BRIEF BELOW. APP USERS: CLICK HERE
While the ACLU acknowledges that the First Amendment does not protect incitements to violence, threats or other unlawful speech, the group says the gag order placed on Trump is insufficiently justified because prosecutors have not shown a serious threat that his speech will threaten the administration of justice.
"No modern-day president did more damage to civil liberties and civil rights than President Trump, but if we allow his free speech rights to be abridged, we know that other unpopular voices – even ones we agree with – will also be silenced," said Anthony D. Romero, executive director of the ACLU. "As much as we disagreed with Donald Trump’s policies, everyone is entitled to the same First Amendment protection against gag orders that are too broad and too vague."
Trump attorney John Lauro said the ACLU brief "makes very strong and compelling legal arguments for preserving Trump's First Amendment Rights. Many of these important legal points were also made by our team as well."
On Wednesday, the special counsel's team responded to Trump's motion to stay. "There has never been a criminal case in which a court has granted a defendant an unfettered right to try his case in the media, malign the presiding judge as a ‘fraud’ and a ‘hack,’ attack the prosecutor as ‘deranged’ and a ‘thug,’" they wrote, pointing out that Trump has even stated that one witness' actions warrant the "punishment" of "DEATH!"
Meanwhile, Trump was hit with a $10,000 fine on Wednesday for violating a separate gag order imposed by New York Judge Arthur Engoron in the civil trial stemming from New York Attorney General Letitia James’ lawsuit against him and the Trump Organization.
Engoron imposed a partial gag order earlier this month, blocking all parties from making derogatory statements about his court staff. Engoron fined Trump on Friday $5,000 for violating the order on social media, and threatened imprisonment if further violations were committed.
On Wednesday, Engoron asked the former president to take the stand during the civil trial, and discussed statements Trump made to the press earlier in the day about "a person who’s very partisan sitting alongside" the judge.
After a back and forth, the judge ruled that Trump was referring to his law clerk – which Trump denied – and fined him $10,000.
Fox News' Brooke Singman contributed to this report.
