Special counsel raises more concerns over Trump’s attacks on witnesses

Written by ABC AUDIO on September 30, 2023

(WASHINGTON) — Special Counsel Jack Smith’s office filed a reply Friday evening to former President Trump’s opposition to the prosecution’s proposed gag order in Trump’s federal election interference case.

Smith’s office raises new concerns about Trump’s recent public statements attacking prosecutors and other potential witnesses and also suggests he may have violated a law prohibiting people under felony indictment from purchasing firearms.

“Since [the] date [the government proposed the gag order], the defendant has continued to make statements that pose a substantial likelihood of material prejudice to this case and that fall within the narrowly tailored order proposed by the Government,” Smith’s office writes.

The filing specifically flags to DC district judge Tanya Chutkan in a footnote that earlier this week when Trump was visiting a firearms dealer in South Carolina — he was “caught potentially violating his conditions of release” by saying he was going to buy a Glock and posing with it.

They say despite a statement from Trump’s spokesperson that later sought to clarify he did not actually purchase the firearm, Trump later re-posted a video from one of his followers with a caption stating he did buy the gun.

“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,” they write. “It would be a separate federal crime, and thus a violation of the defendant’s conditions of release, for him to purchase a gun while this felony indictment is pending.”

Smith’s office raised issue with several posts by Trump on his Truth Social platform attacking a Special Counsel prosecutor and former VP Mike Pence, as well as comments he made in his interview on “Meet the Press.”

Smith’s office also points to Trump’s post attacking Mark Milley, saying Trump “falsely claimed [Milley]… had committed treason and suggested that he should be executed.”

“The defendant’s baseless attacks on the Court and two individual prosecutors not only could subject them to threats—it also could cause potential jurors to develop views about the propriety of the prosecution, an improper consideration for a juror prior to trial,” Smith’s filing says.

“Likewise, the defendant’s continuing public statements about witnesses are substantially likely to materially prejudice a fair trial.”

Smith’s office argued Trump’s attorneys in their opposition filing, “makes light of some of his previous attacks on witnesses” and claims none were actually intimidated. “Even assuming that certain witnesses are not intimidated by the defendant’s statements, other witnesses see and may be affected by what the defendant does to those who are called to testify in this case,” Smith’s filing says.

“And regardless of whether certain witnesses are intimidated by the defendant’s extrajudicial statements, the defendant should not be permitted to attack or bolster the credibility of any witness in a manner that could influence prospective jurors.”

The filing also seeks to dispute Trump’s claim they are trying to “unconstitutionally silence” him, saying their proposed narrow gag order “would in no way hinder the defendant’s ability to campaign and publicly maintain his innocence.”

“All it would limit is the defendant’s use of his candidacy as a cover for making prejudicial public statements about this case—and there is no legitimate need for the defendant, in the course of his campaign, to attack known witnesses regarding the substance of their anticipated testimony or otherwise engage in materially prejudicial commentary in violation of the proposed order,” they argue.

They also accuse Trump of trying to play clean-up after his Truth Social post had stated, “IF YOU GO AFTER ME, I’M COMING AFTER YOU!”

“[Trump’s] spokesperson’s after-the-fact explanation is implausible on its face,” they write. “The truth is clear: the defendant was caught making a public threat and then had a spokesperson issue an excuse.”

“The defendant should not be permitted to obtain the benefits of his incendiary public statements and then avoid accountability by having others – whose messages he knows will receive markedly less attention than his own—feign retraction,” Smith’s office states.

In seeking to pick apart the arguments put forward by Trump’s team, they argue Trump’s filing is “premised on inapplicable caselaw and false claims.”

“[Trump] 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,” they say.

“But in this case, Donald J. Trump is a criminal defendant like any other.”

Trump last month pleaded not guilty to charges of undertaking a “criminal scheme” to overturn the results of the 2020 election by enlisting a slate of so-called “fake electors,” using the Justice Department to conduct “sham election crime investigations,” trying to enlist the vice president to “alter the election results,” and promoting false claims of a stolen election as the Jan. 6 riot raged — all in an effort to subvert democracy and remain in power.

On Tuesday, Trump’s attorneys said they vehemently oppose Smith’s office’s request, calling it an affront to Trump’s First Amendment rights and accusing Smith’s team of having political motivations due to Trump’s strong standing in the 2024 presidential race.

“Following these efforts to poison President Trump’s defense, the prosecution now asks the Court to take the extraordinary step of stripping President Trump of his First Amendment freedoms during the most important months of his campaign against President Biden,” the filing said. “The Court should reject this transparent gamesmanship and deny the motion entirely.”