Jack Smith Cites Trump’s Inflammatory Rhetoric ‘Stretching Back Years’ as Driver to Keep a Gag Order on Former President

Citing a long historical pattern of inflammatory rhetoric by Donald Trump, federal prosecutors argued in a legal brief Tuesday that a gag order is justified in the Washington, D.C., election-subversion case against the former president.

In a 67-page legal brief filed with the U.S. Court of Appeals for the D.C. Circuit, Special Counsel Jack Smith's office said there is a "pattern, stretching back years," in which people publicly targeted by Trump are "subject to harassment, threats, and intimidation."

In the brief, Smith's office refers to a litany of fiery social media posts and statements by the former president surrounding the case to support its argument that the appeals court should affirm the district court's gag order.

"There has never been a criminal case," Smith's office wrote, "in which a court has granted a defendant an unfettered right to try his case in the media, malign the prosecutor and his family, and—after threatening witnesses and others, 'IF YOU GO AFTER ME, I’M COMING AFTER YOU!'—target specific witnesses with attacks on their character and credibility, calling one a 'weakling' and a 'coward' and suggesting that another’s actions warrant the “punishment” of 'DEATH!'"

The partial gag order, first requested by Smith, has been the subject of fierce litigation between prosecutors and Trump's defense team.

U.S. District Judge Tanya Chutkan issued the order Oct. 17, prohibiting not just Trump but all parties to the case from making statements that “target” prosecutors or their staff, defense lawyers or their staff, court staff and supporting personnel, and "any reasonably foreseeable witnesses or the substance of their testimony."

Trump’s legal team responded to the gag order by filing an immediate appeal with the D.C. Circuit Court of Appeals and a separate motion asking Chutkan to remove the gag order while the appeal was pending.

Chutkan temporarily paused the gag order to give both parties an opportunity to present briefings on the topic before reinstating the order in a ruling on Oct. 30.

Trump’s legal team in early November escalated the matter, filing an emergency motion with the D.C. Circuit Court of Appeals asking for the gag order to be administratively paused while their appeal is pending.

In a Nov. 3 order, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ordered that the partial gag order issued by Chutkan is "administratively stayed pending further order of the court."

A reply brief is due from Trump's legal team by Friday, and oral arguments are scheduled for Nov. 20.

The three-judge panel overseeing the proceeding includes Judges Patricia Millett and Cornelia Pillard, both appointees of former President Barack Obama, and Judge Bradley Garcia, an appointee of President Joe Biden.

Trump is charged with four federal felonies in the case alleging he obstructed the 2020 presidential election and has pleaded not guilty to all charges. His trial is scheduled to begin on March 4, the day before Super Tuesday when 14 states vote including California, Colorado, North Carolina, Texas and Virginia.