Prosecutors reiterate need for gag order against Trump in 2020 election case

<span>Photograph: J Scott Applewhite/AP</span>
Photograph: J Scott Applewhite/AP

Special counsel prosecutors reiterated Friday to the federal judge overseeing the 2020 election interference prosecution against Donald Trump the need to impose a limited gag order against the former president to curtail his ability to attack them and potentially intimidate trial witnesses.

The sharply worded, 22-page filing, submitted ahead of a hearing scheduled for 16 October in federal district court in Washington, accused Trump of continuing to make prejudicial public statements even after they had first made the request three weeks ago.

Related: US special counsel seeks gag order on Trump’s ‘inflammatory’ statements

“He demands special treatment, asserting that because he is a political candidate, he should have free rein to publicly intimidate witnesses and malign the court, citizens of this district, and prosecutors. But in this case, Donald J Trump is a criminal defendant like any other,” prosecutors wrote.

The prosecutors said the need for a limited gag order had only increased in urgency since their initial request, filed under seal to US district judge Tanya Chutkan on 5 September, as they cited several threatening statements from Trump that could impact their case and potential jurors.

In particular, the filing highlighted Trump’s posts on his Truth Social platform that attacked his former vice-president Mike Pence, saying without evidence that he had “made up stories about me” and had gone over to the “dark side” after he testified to prosecutors about Trump’s conduct.

The filing also raised Trump’s post about Gen Mark Milley, the retiring chairman of the joint chiefs of staff and another likely trial witness after he was cited in the indictment, that baselessly accused him of committing treason and suggested that he be executed.

“No other criminal defendant would be permitted to issue public statements insinuating that a known witness in his case should be executed,” the assistant special counsel Molly Gaston wrote. “This defendant should not be, either.”

Trump has angrily pushed back at attempts to constrain his public remarks about the case as being politically motivated and had his lawyers previously complain to the judge that prosecutors were infringing on his first amendment rights, especially as he campaigns for another presidential term.

But prosecutors rejected that characterization. The proposed gag order was narrowly tailored to limit Trump from making statements that could affect the outcome of the trial, prosecutors argued, such as about the identities or credibility of witnesses, or comments that could be intimidating.

The additional problem with letting Trump go unchallenged, the prosecutors argued, was that he could continue to intentionally comment on witnesses and what they might say at trial months beforehand, which could poison the jury pool by making them adopt improper beliefs.

“The defendant has made a large volume of public statements …… that would be unaffected by the proposed order,” the filing said. “All it would limit is the defendant’s use of his candidacy as a cover for making prejudicial public statements about this case.”

The filing also raised the issue to the judge about how Trump appeared to be seeking special treatment as the frontrunner for the GOP nomination, saying he may have violated the terms of his release agreement when he visited a gun shop this week on a campaign swing through South Carolina.

The incident involved Trump’s campaign spokesperson posting a video of the former president handling a custom Glock pistol and suggesting he wanted to buy the gun, which would be a federal offense because he is under indictment – but aides quickly denied he had done so.

What actually happened with the gun is uncertain, not least because Trump would have to be a South Carolina resident to lawfully buy a firearm in that state. But prosecutors used the episode as an example of Trump benefiting from incendiary public statements and have others take responsibility.

“The defendant either purchased a gun in violation of the law and his conditions of release, or seeks to benefit from his supporters’ mistaken belief that he did so,” the filing said, adding that Trump surely knew the effect of his words in all of his public statements.