In a recent development in the ongoing legal battles surrounding former President Donald Trump, the American Civil Liberties Union (ACLU) has announced its intention to file an amicus brief arguing the current gag order imposed on Trump in his Washington, D.C. election interference case is unconstitutional.
The announcement came on Wednesday, as federal prosecutors requested U.S. District Judge Tanya Chutkan to reinstate the currently paused gag order. They argued that the order is necessary to prevent Trump from targeting witnesses with his inflammatory language.
The ACLU’s proposed brief, written by senior staff attorney Brett Kaufman, asserts that while Trump’s statements have caused harm to countless individuals and the Republic itself, he still has a First Amendment right to speak. Additionally, the brief argues that the rest of the public has a right to hear what he has to say.
Since the partial gag order was imposed on Oct. 17, Chutkan has prohibited Trump from making statements targeting Special Counsel Jack Smith, his staff, witnesses, and court personnel. However, she has allowed him to criticize the Justice Department in general terms and express his belief that the case against him is politically motivated.
Trump has appealed the order, claiming it violates his free speech rights. Chutkan has since issued a stay pending his appeal, but the former president has resumed posting about the special counsel and witnesses on his social media platform, Truth Social.
The ACLU argues that the gag order is too vague in its ban on “targeting” and the “substance of testimony,” as it could be interpreted to prevent Trump from even mentioning those individuals. They also believe the order is too broad, as it covers a public official like Smith and the “substance” of any witnesses’ testimony, which could be highly relevant to the 2024 presidential campaign.
The organization maintains that while the First Amendment does not protect unlawful speech, the gag order placed on Trump is not sufficiently justified as prosecutors have not shown a serious threat to the administration of justice.
ACLU Executive Director Anthony D. Romero stated, “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.”
Trump’s attorney, John Lauro, said the ACLU’s brief “makes very strong and compelling legal arguments for preserving Trump’s First Amendment Rights.” He added that their team had made similar arguments in their motion to stay.
In addition to the gag order issued by Chutkan, Trump was also fined $10,000 on Wednesday for violating a separate gag order imposed by New York Judge Arthur Engoron in the civil trial brought by New York Attorney General Letitia James.
Engoron imposed a partial gag order earlier this month, prohibiting all parties from making derogatory statements about his court staff. Trump was previously fined $5,000 for violating the order on social media. Engoron has threatened imprisonment if Trump continues to violate the order and has also asked him to take the stand during the civil trial. On Wednesday, Engoron fined him an additional $10,000.