The American Civil Liberties Union (ACLU) on Wednesday urged the judge overseeing former President Trump’s federal 2020 election criminal case in D.C. to reevaluate her gag order, arguing it is unconstitutionally overly broad and vague.
“Former President, and now Defendant, Donald Trump has said many things,” the ACLU and its D.C. affiliate wrote in court filings. “Much that he has said has been patently false and has caused great harm to countless individuals, as well as to the Republic itself. Some of his words and actions have led him to this criminal indictment, which alleges grave wrongdoing in contempt of the peaceful transition of power.”
“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 continued.
U.S. District Judge Tanya Chutkan last week granted special counsel Jack Smith’s motion to impose a gag order on Trump after he made a series of incendiary Truth Social posts attacking D.C. and various people involved in his case.
Trump is charged with four federal felony counts over his efforts to overturn the 2020 presidential election, one of four criminal indictments he faces. He pleaded not guilty and has filed a variety of motions seeking to toss the charges.
Chutkan’s gag order, which is currently paused, bars Trump and his attorneys from speech that would “target” foreseeable witnesses, prosecutors in the case and court personnel. The former president is appealing.
The ACLU said the order is vague enough to violate Trump’s due process rights, contending he “cannot possibly know” what he is permitted to say.
“The entire order hinges on the meaning of the word ‘target,’” the ACLU wrote in its brief. “But that meaning is ambiguous, and fails to provide the fair warning that the Constitution demands, especially when, as here, it concerns a prior restraint on speech.”
The civil liberties group also contended the order is overly broad in violation of Trump’s First Amendment rights, saying it could prevent him from speaking about key points in the campaign, including the results of the 2020 presidential election and the Jan. 6, 2021, Capitol riot.
“This case is already one of the most talked-about trials of all time,” the ACLU wrote. “There may never have been a better-known criminal case in American history, or a better-known defendant. With that in mind, to the extent that the Court’s order seeks to prevent future statements from affecting the impartiality of the potential jury pool, the order seems unlikely to make much of a difference.”
The gag order is one of two imposed on Trump in his various cases.
In his civil fraud trial in New York, the former president was placed under a narrow gag order after attacking the judge’s principal clerk. That judge has since found Trump violated the order on two occasions and issued fines.
The ACLU filing comes the same day Trump unexpectedly took the stand in the New York case to answer allegations of violating the order.
Judge Arthur Engoron asked whether Trump made a reported comment that he is a “very partisan judge with a person who is very partisan sitting alongside him, perhaps even more partisan than he is.” Trump nodded, responding “yes.”
“To whom were you referring?” Engoron asked.
“You and [Michael] Cohen,” Trump replied.
“Are you sure that you didn’t mean the person on the other side, my principal law clerk?” Engoron asked.
“Yes, I’m sure,” Trump said.
The judge fined Trump $10,000.