Federal Prosecutors Make Their Case for Gag Order on Trump

Prosecutors asked a federal appeals court in Washington on Tuesday to give its approval to a gag order imposed on former President Donald J. Trump in the federal case in which he stands accused of plotting to overturn the 2020 election, saying that Mr. Trump’s “long history” of targeting his adversaries on social media has often led to dangers in the real world.

The gag order on Mr. Trump was suspended this month by the appeals court as it considers whether the trial judge in the case, Tanya S. Chutkan, was justified in imposing it in the first place. The appeals court is scheduled to hear oral arguments about the order next week.

In a 67-page filing, Cecil Vandevender, an assistant to Jack Smith, the special counsel leading the federal prosecutions of the former president, told the appeals court that Mr. Trump had received several warnings to curb his aggressive public statements. Still, Mr. Vandevender wrote, the former president has persistently sought to “malign” Mr. Smith and his family, and “target specific witnesses with attacks on their character and credibility.”

Mr. Trump’s attacks on those involved in the election interference case were “part of a pattern, stretching back years, in which people publicly targeted by the defendant are, as a result of the targeting, subject to harassment, threats and intimidation,” Mr. Vandevender wrote.

His plea to the U.S. Court of Appeals for the District of Columbia Circuit was one of the final steps in the protracted battle over the gag order. It was put in place last month to keep Mr. Trump from targeting prosecutors, witnesses or any court employees involved in the case in Federal District Court in Washington.

Judge Chutkan paused the order briefly nearly four weeks ago to consider some issues involving the appeal, but then reinstated it at Mr. Smith’s request after Mr. Trump continued to violate its provisions.

Not long after, the appeals court itself temporarily suspended the order as it considered whether it had been properly issued in the first place. The fight between Mr. Trump’s lawyers and Mr. Smith’s prosecutors is expected to come to a head on Monday when the court hears oral arguments from both sides about the order’s validity.

In his filing on Tuesday, Mr. Vandevender pointed out that Judge Chutkan had cautioned Mr. Trump about his public statements as early as August, not long after his indictment in the case was handed up. At a hearing in Washington, the judge acknowledged that the former president would be “afforded all the rights that any citizen would have,” but also noted that she would not tolerate “a carnival atmosphere of unchecked publicity and trial by media.”

Despite such warnings, Mr. Vandevender told the appeals court, Mr. Trump launched a barrage of attacks on people involved in the case. The former president repeatedly called Mr. Smith and his team “thugs” and “lunatics,” and lashed out at Judge Chutkan herself as a “fraud.”

Mr. Trump called former Vice President Mike Pence, a possible trial witness, “delusional.” He also posted a message online, Mr. Vandevender noted, saying that Gen. Mark A. Milley, the former chairman of the Joint Chiefs of Staff and another potential trial witness, had done something “so egregious that, in times gone by, the punishment would have been DEATH!”

Mr. Trump’s remarks have sometimes had consequences in the real world, Mr. Vandevender told the appeals court.

He noted that when the former president put a post online saying “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” shortly after his indictment, a Texas woman left Judge Chutkan a voice mail message threatening to kill her. (The woman was later arrested.)

He also pointed out that after Mr. Trump posted former President Barack Obama’s address on social media, a Navy veteran who saw the post went to the neighborhood armed with weapons and ammunition. (He was also arrested.)

Ever since the gag order was imposed, Mr. Trump has maintained that it has trampled his First Amendment rights and kept him, as he runs again for president, from publicly criticizing the election interference case as an example of political persecution.

But, as Mr. Vandevender told the appeals court, the order was in fact narrowly tailored and expressly permitted Mr. Trump to attack President Biden or his administration, and to assail the election prosecution as political.

“The order leaves the defendant free to do virtually everything that he has claimed, throughout the litigation, that he must be able to do to run for office while defending himself in court,” Mr. Vandevender wrote.