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(NEW YORK) — With jury selection scheduled to begin in Donald Trump’s New York hush money trial in three weeks, the former president’s defense lawyers have asked Judge Juan Merchan to deny prosecutors’ recent request for a limited gag order, arguing the former president should be permitted to fully respond to attacks by his political opponents.
Defense lawyers argued in a filing Monday that the proposed gag order fails to meet the legal standard for restrictions on a defendant’s speech and described the proposed gag order as a “unconstitutional” effort “to assail President Trump based on politically motivated indictments.”
“American voters have the First Amendment right to hear President Trump’s uncensored voice on all issues that relate to this case,” defense attorney Todd Blanche wrote in the filing. “President Trump’s political opponents have, and will continue to, attack him based on this case. The voters have the right to listen to President Trump’s unfettered responses to those attacks — not just one side of that debate.”
Last week, Manhattan District Attorney Alvin Bragg requested that Judge Merchan limit Trump from making public comments about potential witnesses, judicial staff and any jurors in the case, as well as prosecutors other than Bragg himself.
“Defendant has a long history of making public and inflammatory remarks about the participants in various judicial proceedings against him, including jurors, witnesses, lawyers, and court staff,” prosecutors wrote in their filing last week. “Those remarks, as well as the inevitable reactions they incite from [the] defendant’s followers and allies, pose a significant and imminent threat to the orderly administration of this criminal proceeding and a substantial likelihood of causing material prejudice.”
In response, defense lawyers described the gag order as a “heckler’s veto” which fails to identify or substantiate which third parties might engage in threats or harassment.
They also argued that Trump has complied with past gag orders, as well as the protective order imposed by Merchan in this case. Trump was fined $15,000 for two violations of the limited gag order in his recent New York civil fraud trial.
“The First Amendment under the State and federal Constitutions requires that President Trump’s ability to respond to public attacks relating to this case, as he continues his leading campaign for the Presidency, be afforded the highest level of constitutional protections,” the filing said.
While other courts have upheld the gag orders in Trump’s other cases — including New York’s Court of Appeals and the D.C. Circuit Court — Trump’s lawyers argued that those other examples are irrelevant to this request for a gag order.
“It is of no relevance for purposes of the prior restraint sought by the People that courts in other cases — with different facts, different witnesses, and at different times — have entered other gag orders that violated President Trump’s constitutional rights and have been contested in appellate proceedings,” they wrote.
Defense lawyers also argued that, contrary to what prosecutors said was Trump’s “long history of making public and inflammatory remarks” about witnesses and jurors, prosecutors failed to demonstrate how Trump’s recent statements prompted witnesses to feel intimidated or harassed.
“The People’s failure to point to actual prejudice from those earlier statements, such as an indication that witnesses in this case feel harassed or intimidated, which they have not presented evidence of, undercuts their application significantly,” the filing said.
Trump in April pleaded not guilty to a 34-count indictment charging him with falsifying business records in connection with a hush money payment made by his then-attorney, Michael Cohen, to adult film actress Stormy Daniels days before the 2016 presidential election. The former president has denied all wrongdoing.
Trump’s lawyers argued in Monday’s filing that the former president should be able have to respond to public attacks from witnesses in the case — explicitly mentioning recent public comments by Daniels and Cohen.
“Based on Cohen’s record to date, there is every reason to believe that he will continue to comment on this case in podcasts and social media during the trial, as he has done continuously since arraignment not withstanding the Court’s request that he stop,” the filing said. “President Trump is entitled to respond to those types of attacks, and the proposed gag order would impermissibly restrict his ability to do so.”
As Trump campaigns for the presidency, his lawyers wrote that he should be “afforded the highest level of constitutional protections.” They argued his speech about his criminal case is “inextricably entwined with his campaign.”
“President Trump is entitled to criticize these public figures, and the voters are entitled to hear President Trump’s criticism of them, especially as the Presidential campaign proceeds,” the filing said.
The trial is scheduled to get underway on March 25.
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