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Judge weighs imposing partial gag order against Trump after inflammatory posts

A MARTÍNEZ, HOST:

The Justice Department says former President Donald Trump undermined the 2020 election with bombastic statements and phony claims of fraud. Now prosecutors working for special counsel Jack Smith say Trump is trying to do the same thing all over again in his criminal trial for alleged election interference. They're asking the judge to impose a partial gag order in the case because they say Trump's comments may lead to witness intimidation, and that could taint the jury pool. Both sides are due in court in Washington, D.C., today.

NPR justice correspondent Carrie Johnson is following the story. She joins us now. Carrie, the former president was indicted in August for conspiring to defraud the government he once led. What's he said since that's got prosecutors concerned?

CARRIE JOHNSON, BYLINE: He said a lot, A. The special counsel prosecutors say Trump has a history of inflammatory and misleading statements and that Trump knows when he speaks, he inspires other people to threaten and harass his targets. The judge in this case has already warned Trump's lawyers about a social media post Trump made a day after his arraignment that read, if you go after me, I'm coming after you.

Since then, Trump has posted the justice system is rigged, that special counsel Jack Smith is deranged, that the judge is a radical Obama hack and that he can't get a fair trial right here in Washington, D.C. Trump has also verbally attacked possible witnesses. They include former Vice President Mike Pence and his former attorney general, Bill Barr.

MARTÍNEZ: OK, so it's a long list. So what are prosecutors asking the judge to do?

JOHNSON: They're asking this judge for a limited gag order to cover not just Trump but all the attorneys in the case, too. And they want to cover statements that create a high likelihood of prejudicing the case, things like witness intimidation, remarks that could taint the jury pool. The Justice Department says they would not include writings in the court record or Trump's statements that he's innocent.

And in fact, one of the cases the special counsel cites to back up this request is a high-profile prosecution that Judge Tanya Chutkan handled a few years ago involving the unregistered Russian agent Maria Butina. Judge Chutkan did impose a partial gag order in that case. But this one, A, is a lot harder, in part because it's not clear if Trump will follow the rules and what the judge might do if Trump crosses the line.

MARTÍNEZ: Yeah. Isn't Trump, though, already under a partial gag order in New York City?

JOHNSON: He is. And in that civil fraud case in New York, a judge there issued a partial gag and sharply rebuked him. After Trump made baseless accusations against the judge's law clerk and posted that clerk's photo online, the judge said, personal attacks on members of my court staff are unacceptable, inappropriate, and I will not tolerate them. Trump, of course, later deleted that social media post in question in New York.

MARTÍNEZ: All right, so how is the Trump team expected to react to the request for a gag order in the D.C. case today?

JOHNSON: Trump's main attorney in this case, John Lauro, has already called the idea an unconstitutional prior restraint in court papers. Lauro says the Justice Department got to say its piece in a 45-page indictment against Trump this past summer and that they shouldn't be allowed to muzzle Trump as he tries to defend himself. Lauro wants Judge Chutkan to deny this gag order. He's also moved to dismiss the entire election interference case on the basis the former president is entitled to immunity for actions that relate to his job. A, that's a bold argument. Not clear Trump will win. But it could lead to an appeal before trial, and that would play into Trump's strategy to delay all these criminal cases until after the 2024 election.

MARTÍNEZ: All right. NPR's Carrie Johnson. Carrie, thanks.

JOHNSON: My pleasure. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Steve Inskeep is a host of NPR's Morning Edition, as well as NPR's morning news podcast Up First.
Carrie Johnson is a justice correspondent for the Washington Desk.