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      Prosecutors Ask if Trump Will Blame His Lawyers as Defense in Election Case

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      The special counsel asked a judge to require the former president to disclose whether he would blame poor legal advice for his attempts to overturn his 2020 election loss.Federal prosecutors asked a judge on Tuesday to force former President Donald J. Trump to tell them months before he goes to trial on charges of seeking to overturn the 2020 election whether he intends to defend himself by blaming the stable of lawyers around him at the time for giving him poor legal advice.In a motion filed to the judge, Tanya S. Chutkan, the prosecutors sought an order that would compel Mr. Trump to tell them by Dec. 18 if he plans to pursue the blame-the-lawyers strategy — known as an advice of counsel defense — at his federal election interference trial, which is now set to begin in March in Federal District Court in Washington.Both Mr. Trump and his current team of lawyers have “repeatedly and publicly announced” that they were going to use such arguments as “a central component of his defense,” prosecutors told Judge Chutkan in their filing. They said they wanted a formal order forcing Mr. Trump to tell them his plans by mid-December “to prevent disruption of the pretrial schedule and delay of the trial.”The early notification could also give prosecutors a tactical edge in the case. Defendants who pursue advice of counsel arguments waive the shield of attorney-client privilege that would normally protect their dealings with their lawyers. And, as prosecutors reminded Judge Chutkan, if Mr. Trump heads in this direction, he would have to give them not only all of the “communications or evidence” concerning the lawyers he plans to use as part of his defense, but also any “otherwise-privileged communications” that might be used to undermine his claims.Lawyers have been at the heart of the election interference case almost from the moment prosecutors first began issuing grand jury subpoenas to witnesses in the spring of 2022. Many of the subpoenas sought information about lawyers like John Eastman and Kenneth Chesebro, who entered Mr. Trump’s orbit around the time of the election and were instrumental in advising him about a scheme to create false slates of electors that declared him the winner of key swing states that had actually been won by his opponent, Joseph R. Biden Jr.The subpoenas also sought information about other lawyers, like Jenna Ellis and Rudolph W. Giuliani, who had not only advised Mr. Trump on the false elector plan, but had helped him advance claims that the election had been marred by widespread fraud.Moreover, lawyers from both Mr. Trump’s administration and his presidential campaign proved to be key witnesses in the investigation that began under the Justice Department and then was handed off to prosecutors working for the special counsel, Jack Smith.And when charges were finally filed against Mr. Trump, accusing him of three overlapping conspiracies to remain in power despite the will of the voters, the indictment identified six unnamed co-conspirators — most, if not all, of whom were lawyers as well.In their motion to Judge Chutkan, prosecutors noted that at least 25 witnesses in their sprawling investigation had withheld information based on assertions of attorney-client privilege. Those people, the prosecutors said, included Mr. Trump’s co-conspirators, some of his former campaign employees, some “outside attorneys” and “even a family member of the defendant,” who was not further identified.While prosecutors acknowledged that they were not entirely sure if Mr. Trump intended to raise an advice of counsel defense — or whether he was even legally entitled to do so — they did take note of the public statements that he and his current legal team have made suggesting that such arguments might be used at trial.The prosecutors pointed out that three days after Mr. Trump was arraigned in the case, one of his lawyers, John F. Lauro, made the rounds of the Sunday TV news shows, describing how Mr. Trump had been charged for “following legal advice” from Mr. Eastman, whom he described as “an esteemed scholar.”Weeks later, in an online interview with the former Fox News host Tucker Carlson, prosecutors said, Mr. Trump himself made similar claims. In their filing, they wrote that Mr. Trump claimed he had “some lawyers” who had advised him “that a particular course of action described in the indictment was appropriate.”In a separate filing on Tuesday, prosecutors sought to get a jump on what is certain to be the difficult process of picking a jury for the trial.Citing Mr. Trump’s “continued use of social media as a weapon of intimidation” — an issue that has come up in the government’s request for a gag order to be placed on the former president — the prosecutors asked Judge Chutkan to impose restrictions on information about potential jurors and those who are ultimately picked to serve.The prosecutors asked that no one involved in the case be allowed to publicly disclose information about the jurors gleaned during the selection process, in order to protect them “from intimidation and fear.”They also asked Judge Chutkan to consider arranging “for jurors to gain discreet entry into and out of the courthouse” once the trial begins. 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      Trump Seeks Dismissal of Federal Election Case, Claiming Immunity

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      Donald Trump’s lawyers asked a judge to throw out charges that he conspired to overturn the 2020 election, arguing that a president could not be criminally prosecuted for official acts.Lawyers for former President Donald J. Trump asked a judge on Thursday to throw out a federal indictment accusing him of conspiring to overturn the 2020 election and claimed that because the charges relate to actions he took as president, he should be “absolutely immune from prosecution.”The request to dismiss the election interference indictment, which came in a 52-page briefing filed in Federal District Court in Washington, was breathtaking in its scope. It argued that Mr. Trump could not be held accountable in court for any actions he took as president, even after a grand jury had returned criminal charges against him.While the Justice Department has long maintained a policy that sitting presidents cannot be indicted, Mr. Trump’s bid to claim total immunity from prosecution was a remarkable attempt to extend the protections afforded to the presidency in his favor.His motion to dismiss was certain to result in a pitched legal battle with prosecutors in the office of the special counsel, Jack Smith, if only because the idea that a president cannot be prosecuted for actions undertaken in his official capacity as commander in chief has never before been tested.The motion, which will be considered by Judge Tanya S. Chutkan, was also the first — but likely not the last — attempt by Mr. Trump’s lawyers to attack the charges in the election interference case directly.Until now, the lawyers have largely waged a series of unsuccessful procedural battles, seeking, and failing, to push back the trial until 2026 and to disqualify Judge Chutkan.In his filing, John F. Lauro, a lawyer for Mr. Trump, immediately sought to reframe the core of Mr. Smith’s case. He argued that the former president’s repeated lies that widespread fraud had marred the vote count and other steps he took to subvert the normal course of the democratic process were, in fact, “efforts to ensure election integrity.”Those efforts, Mr. Lauro argued, were “at the heart of” Mr. Trump’s “official responsibilities as president” and so should not be subject to criminal charges.“Here, 234 years of unbroken historical practice — from 1789 until 2023 — provide compelling evidence that the power to indict a former president for his official acts does not exist,” Mr. Lauro wrote. “No prosecutor, whether state, local or federal, has this authority; and none has sought to exercise it until now.”Over and over in his motion, Mr. Lauro sought to flip the story told by the indictment and portray the various steps that Mr. Trump took to subvert the election as official acts designed to protect its integrity.John F. Lauro, a lawyer for Mr. Trump, argued that the charges in a federal indictment were related to Mr. Trump’s actions while president, which should be “absolutely immune from prosecution.”Jim Lo Scalzo/EPA, via ShutterstockThe indictment detailed, for example, how Mr. Trump tried to enlist the Justice Department in validating his claims of fraud. It set out evidence of his pressuring state lawmakers to draft false slates of electors saying he had won states he actually lost. And it documented how he waged a campaign to persuade his own vice president, Mike Pence, to unilaterally declare him the victor in the race during a certification at the Capitol on Jan. 6, 2021.But all of these actions, Mr. Lauro wrote, fell within the scope of Mr. Trump’s “official duties” as president and so were “immune from criminal prosecution.”Only a handful of precedents exist that could help guide Judge Chutkan in making a decision about such broad claims of immunity, and none are perfectly on point.In 1982, the Supreme Court ruled by a 5-to-4 margin that former President Richard M. Nixon was absolutely immune from a civil suit arising from his official actions. But while Mr. Lauro cited that case, Nixon v. Fitzgerald, extensively in his filing, the reasoning in its majority opinion did not address whether presidential actions could be prosecuted as crimes.Before he was appointed as Mr. Trump’s final attorney general, William P. Barr wrote an apparently unsolicited memo claiming that presidents could not be charged with crimes for abusing their official powers.The memo was ultimately given to the lawyers defending Mr. Trump in the investigation into Russian election interference led by the special counsel, Robert S. Mueller III. In it, Mr. Barr concluded that Mr. Mueller should not be permitted to investigate Mr. Trump for obstruction of justice.This summer, the Justice Department announced it would no longer argue that Mr. Trump’s derogatory statements about the writer E. Jean Carroll were made as part of his official duties as president. A few months earlier, Ms. Carroll had won $5 million in damages in a trial accusing Mr. Trump of sexual abuse and defamation over comments he made after he left the White House. She is now trying to push forward a separate lawsuit over comments that he made while president.Last month, a judge in Atlanta rejected an attempt by Mark Meadows, Mr. Trump’s former White House chief of staff, to move a case accusing him and others, including Mr. Trump, of tampering with the election in Georgia from state court to federal court.Mr. Meadows had also sought to claim immunity against the charges. But the judge overseeing the case ruled that the steps he took in helping Mr. Trump overturn the election were not part of his official White House duties, but were instead political efforts to help Mr. Trump get re-elected.Alan Rozenshtein, a former Justice Department official who teaches at the University of Minnesota Law School, said the key question facing Judge Chutkan would be whether to accept Mr. Trump’s attempt to reframe the accusations as presidential acts that were beyond the scope of prosecution.It was a shrewd legal gambit, Mr. Rozenshtein said, because it played off a legitimate presidential duty under the Constitution: to faithfully execute federal law.“He will lose,” Mr. Rozenshtein said. “But he is making the correct conceptual argument.” More

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      Trump Lawyers Assail Gag Order Request in Election Case

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      The former president’s legal team said that an order limiting his public statements about the case would strip him of his First Amendment rights.Lawyers representing former President Donald J. Trump against federal charges accusing him of seeking to overturn the 2020 election offered an outraged response on Monday to the government’s request for a gag order, saying the attempt to “muzzle” him during his presidential campaign violated his free speech rights.In a 25-page filing, the lawyers sought to turn the tables on the government, accusing the prosecutors in the case of using “inflammatory rhetoric” themselves in a way that “violated longstanding rules of prosecutorial ethics.”“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,” one of the lawyers, Gregory M. Singer, wrote. “The court should reject this transparent gamesmanship.”The papers, filed in Federal District Court in Washington, came 10 days after prosecutors in the office of the special counsel, Jack Smith, asked Judge Tanya S. Chutkan, who is overseeing the election interference case, to impose a narrow gag order on Mr. Trump. The order, they said, was meant to curb Mr. Trump’s “near-daily” barrage of threatening social media posts and to limit the effect his statements might have on witnesses in the case and on the potential jury pool for the trial. It is scheduled to take place in Washington starting in March.The lawyers’ attempt to fight the request has now set up a showdown that will ultimately have to be resolved by Judge Chutkan, an Obama appointee who has herself experienced the impact of Mr. Trump’s menacing words.One day after the former president wrote an online post in August saying, “IF YOU GO AFTER ME, I’M COMING AFTER YOU,” Judge Chutkan received a voice mail message in her chambers from a woman who threatened to kill her. (The woman, Abigail Jo Shry, has since been arrested.)Gag orders limiting what trial participants can say outside of court are not uncommon, especially to constrain pretrial publicity in high-profile cases. But the request to gag Mr. Trump as he solidifies his position as the front-runner for the Republican presidential nomination has injected a current of political tension into what was already a fraught legal battle.That tension has only been heightened by the fact that Mr. Trump has placed the election interference case — and the three other criminal indictments he is facing — at the heart of his campaign.His core political argument — that he is being persecuted, not prosecuted — may be protected in some ways by the First Amendment but has also put him on what could be a collision course with Judge Chutkan. Early in the case, she warned Mr. Trump that she would take measures to ensure the integrity of the proceedings and to keep him from intimidating witnesses or tainting potential jurors.Almost from the moment Mr. Trump was indicted, his legal team has raised a First Amendment defense, arguing that prosecutors had essentially charged him for expressing his opinions about the 2020 elections. In the new court papers, Mr. Singer repeated those arguments, adding that Mr. Trump’s public statements about the case had not intimidated anyone or prejudiced the jury pool.He also said the government’s proposed gag order was not narrowly tailored, as prosecutors had claimed. He called it “sweepingly broad” and “undefined,” encompassing any potential witnesses in the case — including those “who are actively waging political campaigns against President Trump.”“The prosecution would silence President Trump, amid a political campaign where his right to criticize the government is at its zenith, all to avoid a public rebuke of this prosecution,” Mr. Singer wrote.Mr. Trump has long made a habit of attacking his enemies in vivid and often vicious fashion, making use of social media in particular. But now that he is a defendant, facing four indictments in four cities, his penchant for threatening and bullying those in his way has bumped up against the traditional strictures of the criminal justice system.In their request for the gag order earlier this month, prosecutors said Mr. Trump had repeatedly referred to Mr. Smith as “deranged” and has called Judge Chutkan “a radical Obama hack” and a “biased, Trump-hating judge.”They also noted that Mr. Trump has attacked the residents of Washington who one day will be called upon to serve as the jury pool for his trial. In one post, Mr. Trump claimed he would never get a fair hearing from those who lived in the “filthy and crime-ridden” city, which he said “is over 95% anti-Trump.”Mr. Singer played down the impact of these statements, saying that Mr. Trump had “never called for any improper or unlawful action” and that no one had truly been harmed by his words.“Every hearing in this case has gone forward on schedule, without incident,” he wrote, “and there is zero reason to believe that will change due to President Trump’s political expressions.”Picking up an argument it has used before, Mr. Trump’s legal team also sought to paint the prosecution of the former president as a political attack launched by President Biden — even though the case is being led by Mr. Smith, who was appointed by the Justice Department as an independent prosecutor.“At bottom, the proposed gag order is nothing more than an obvious attempt by the Biden Administration to unlawfully silence its most prominent political opponent, who has now taken a commanding lead in the polls,” Mr. Singer wrote. 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      As Trump Prosecutions Move Forward, Threats and Concerns Increase

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      As criminal cases proceed against the former president, heated rhetoric and anger among his supporters have the authorities worried about the risk of political dissent becoming deadly.At the federal courthouse in Washington, a woman called the chambers of the judge assigned to the election interference case against former President Donald J. Trump and said that if Mr. Trump were not re-elected next year, “we are coming to kill you.”At the Federal Bureau of Investigation, agents have reported concerns about harassment and threats being directed at their families amid intensifying anger among Trump supporters about what they consider to be the weaponization of the Justice Department. “Their children didn’t sign up for this,” a senior F.B.I. supervisor recently testified to Congress.And the top prosecutors on the four criminal cases against Mr. Trump — two brought by the Justice Department and one each in Georgia and New York — now require round-the-clock protection.As the prosecutions of Mr. Trump have accelerated, so too have threats against law enforcement authorities, judges, elected officials and others. The threats, in turn, are prompting protective measures, a legal effort to curb his angry and sometimes incendiary public statements, and renewed concern about the potential for an election campaign in which Mr. Trump has promised “retribution” to produce violence.Given the attack on the Capitol by Trump supporters on Jan. 6, 2021, scholars, security experts, law enforcement officials and others are increasingly warning about the potential for lone-wolf attacks or riots by angry or troubled Americans who have taken in the heated rhetoric.In April, before federal prosecutors indicted Mr. Trump, one survey showed that 4.5 percent of American adults agreed with the idea that the use of force was “justified to restore Donald Trump to the presidency.” Just two months later, after the first federal indictment of Mr. Trump, that figure surged to 7 percent.Given the attack on the Capitol by Trump supporters on Jan. 6, 2021, scholars, security experts and others are increasingly warning about the potential for lone-wolf attacks by angry Americans.Jason Andrew for The New York TimesThe indictments of Mr. Trump “are the most important current drivers of political violence we now have,” said the author of the study, Robert Pape, a political scientist who studies political violence at the University of Chicago.Other studies have found that any effects from the indictments dissipated quickly, and that there is little evidence of any increase in the numbers of Americans supportive of a violent response. And the leaders of the far-right groups that helped spur the violence at the Capitol on Jan. 6 are now serving long prison terms.But the threats have been steady and credible enough to prompt intense concern among law enforcement officials. Attorney General Merrick B. Garland addressed the climate in testimony to Congress on Wednesday, saying that while he recognized that the department’s work came with scrutiny, the demonization of career prosecutors and F.B.I. agents was menacing not only his employees but also the rule of law.“Singling out individual career public servants who are just doing their jobs is dangerous — particularly at a time of increased threats to the safety of public servants and their families,” Mr. Garland said.“We will not be intimidated,” he added. “We will do our jobs free from outside influence. And we will not back down from defending our democracy.”Security details have been added for several high-profile law enforcement officials across the country, including career prosecutors running the day-to-day investigations.The F.B.I., which has seen the number of threats against its personnel and facilities surge since its agents carried out the court-authorized search of Mar-a-Lago, Mr. Trump’s private club and residence in Florida, in August 2022, subsequently created a special unit to deal with the threats. A U.S. official said threats since then have risen more than 300 percent, in part because the identities of employees, and information about them, are being spread online.“We’re seeing that all too often,” Christopher A. Wray, the bureau’s director, said in congressional testimony this summer.The threats are sometimes too vague to rise to the level of pursuing a criminal investigation, and hate speech enjoys some First Amendment protections, often making prosecutions difficult. But the Justice Department has charged more than a half dozen people with making threats.This has had its own consequences: In the past 13 months, F.B.I. agents confronting individuals suspected of making threats have shot and fatally wounded two people, including one in Utah who was armed and had threatened, before President Biden’s planned visit to the area, to kill him.Jack Smith, the special counsel, has sought a gag order against Mr. Trump.Doug Mills/The New York TimesIn a brief filed in Washington federal court this month, Jack Smith, the special counsel overseeing the Justice Department’s prosecutions of Mr. Trump, took the extraordinary step of requesting a gag order against Mr. Trump. He linked threats against prosecutors and the judge presiding in the case accusing Mr. Trump of conspiring to overturn the results of the 2020 election to the rhetoric Mr. Trump had used before Jan. 6.“The defendant continues these attacks on individuals precisely because he knows that in doing so, he is able to roil the public and marshal and prompt his supporters,” the special counsel’s office said in a court filing.Mr. Trump has denied promoting violence. He says that his comments are protected by the First Amendment right to free speech, and that the proposed gag order is part of a far-ranging Democratic effort to destroy him personally and politically.“Joe Biden has weaponized his Justice Department to go after his main political opponent — President Trump,” said Steven Cheung, a spokesman for the former president.But Mr. Trump’s language has often been, at a minimum, aggressive and confrontational toward his perceived foes, and sometimes has at least bordered on incitement.On Friday, Mr. Trump baselessly suggested in a social media post that Gen. Mark A. Milley, the departing chairman of the Joint Chiefs of Staff, might have engaged in treason, “an act so egregious that, in times gone by, the penalty would have been DEATH.” (General Milley has been interviewed by the special counsel’s office.)The day before the threatening call last month to Judge Tanya S. Chutkan’s chambers in Federal District Court in Washington, Mr. Trump posted on his social media site: “IF YOU GO AFTER ME, I’M COMING FOR YOU!” (A Texas woman was later charged with making the call.)Mr. Smith — whom Mr. Trump has described as “a thug” and “deranged” — has been a particular target of violent threats, and his office is on pace to spend $8 million to $10 million on protective details for him, his family and senior staff members, according to officials.Members of his plainclothes detail were conspicuously present as he entered an already locked-down Washington federal courtroom last month to witness Mr. Trump’s arraignment on the election interference charges — standing a few feet from the former president’s own contingent of Secret Service agents.On Friday, a judge presiding over a case in Colorado about whether Mr. Trump can be disqualified from the ballot there for his role in promoting the Jan. 6 attack issued a protective order barring threats or intimidation of anyone connected to the case. The judge cited the types of potential dangers laid out by Mr. Smith in seeking the gag order on Mr. Trump in the federal election case.There have been recent acts of political violence against Republicans, most notably the 2017 shooting of Representative Steve Scalise of Louisiana. Last year an armed man arrested outside the home of Justice Brett M. Kavanaugh said he had traveled from California to kill the conservative Supreme Court jurist.But many scholars and experts who study political violence place the blame for the current atmosphere most squarely on Mr. Trump — abetted by the unwillingness of many Republican politicians to object to or tamp down the violent and apocalyptic language on social media and in the conservative media.In one example of how Mr. Trump’s sway over his followers can have real-world effects, a man who had been charged with storming the Capitol on Jan. 6 was arrested in June looking for ways to get near former President Barack Obama’s Washington home. The man — who was armed with two guns and 400 rounds of ammunition and had a machete in the van he was living in — had hours earlier reposted on social media an item Mr. Trump had posted that same day, which claimed to show Mr. Obama’s home address.At his rallies and in interviews, Mr. Trump has described the Jan. 6 rioters who have been arrested as “great patriots” and said they should be released.Scott McIntyre for The New York TimesIn his first two years out of office, Mr. Trump’s public comments largely focused on slowly revising the history of what happened on Jan. 6, depicting it as mostly peaceful. At his rallies and in interviews, he has described the rioters who have been arrested as “great patriots,” said they should be released, dangled pardons for them and talked repeatedly about rooting out “fascists,” “Marxists” and “communists” from government.Mr. Trump’s verbal attacks on law enforcement agencies intensified after the F.B.I.’s search of Mar-a-Lago, as they pursued the investigation that later led to his indictment on charges of mishandling classified documents and obstructing efforts to retrieve them. Some of his most aggressive comments were made as it became clear that the Manhattan district attorney, Alvin L. Bragg, was likely to indict him last spring in connection with hush money payments to a porn actress.He posted a story from a conservative news site that featured a picture of Mr. Bragg with an image of Mr. Trump wielding a baseball bat right next to it.In another post, Mr. Trump predicted that there would be “potential death and destruction” if he were charged by Mr. Bragg. The district attorney’s office found a threatening letter and white powder in its mailroom hours later. (The powder was later determined not to be dangerous.)Professor Pape, of the University of Chicago, said that while the numbers of people who felt violence was justified to support Mr. Trump were concerning, he would rather focus on a different group identified in his survey: the 80 percent of American adults who said they supported a bipartisan effort to reduce the possibility of political violence.“This indicates a vast, if untapped, potential to mobilize widespread opposition to political violence against democratic institutions,” he said, “and to unify Americans around the commitment to a peaceful democracy.”Kirsten Noyes More

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      Request for Gag Order on Trump Raises Free Speech Dilemma

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      By putting the prospect of political violence at the heart of their argument to limit the former president’s statements about the election case, federal prosecutors raised issues that have little precedent.The request by prosecutors that a judge impose a gag order on former President Donald J. Trump in the federal election-subversion case presents a thorny conflict between the scope of his First Amendment rights and fears that he could — intentionally or not — spur his supporters to violence.There is little precedent for how the judge overseeing the case, Tanya S. Chutkan, should think about how to weigh strong constitutional protections for political speech against ensuring the functioning of the judicial process and the safety of the people participating in it.It is one more example of the challenges of seeking to hold to account a norm-shattering former president who is being prosecuted in two federal cases — and two state cases — as he makes another bid for the White House with a message that his opponents have weaponized the criminal justice system against him.“Everything about these cases is making new law because there are so many gaps in the law,” said Paul F. Rothstein, a law professor at Georgetown University and a criminal procedure specialist. “The system is held together by people doing the right thing according to tradition, and Trump doesn’t — he jumps into every gap.”Citing a spate of threats inspired by the indictment of Mr. Trump in the election case, the special counsel overseeing the prosecutions for the Justice Department, Jack Smith, asked Judge Chutkan this month to order the former president to cease his near-daily habit of making “disparaging and inflammatory or intimidating” public statements about witnesses, the District of Columbia jury pool, the judge and prosecutors.A proposed order drafted by Mr. Smith’s team would also bar Mr. Trump and his lawyers from making — or causing surrogates to make — public statements, including on social media, “regarding the identity, testimony or credibility of prospective witnesses.” The motion cited Mr. Trump’s attacks on former Vice President Mike Pence and former Attorney General William P. Barr, who refused to go along with his efforts to overturn the 2020 election.The draft order would allow Mr. Trump to say he denies the charges “without further comment.”Jack Smith, the special counsel, asked the judge to order Mr. Trump to cease his habit of making “disparaging and inflammatory or intimidating” public statements about witnesses, the District of Columbia jury pool, the judge and prosecutors.Doug Mills/The New York TimesA version of the motion was unsealed late last week. Judge Chutkan, of the Federal District Court in Washington, has ordered Mr. Trump’s legal team to file any opposition to it by Monday and is likely to hold a hearing on the request next month. A spokesman for Mr. Trump has called the request “blatant election interference” and a corrupt and cynical attempt to deprive the former president of his First Amendment rights.Gag orders limiting what trial participants can say outside of court are not uncommon, especially to limit pretrial publicity in high-profile cases. Courts have held that orders barring participants from certain public comments are constitutional to avoid prejudicing a jury, citing the public interest in the fair and impartial administration of trials.The context of the gag request for Mr. Trump, though, is different in fundamental ways.Mr. Smith’s filing nodded to the potential for Mr. Trump’s statements to complicate the process of seating an unbiased jury in the case, which is scheduled to go to trial in March. But the request for the gag order focused primarily on a different concern: that Mr. Trump’s angry and vengeful statements about the proceedings against him are putting people in danger now.The motion cited “multiple threats” to Mr. Smith. It noted that another prosecutor, Jay I. Bratt, had been subject to “intimidating communications” after the former president targeted him in “inflammatory public posts,” falsely saying Mr. Bratt had tipped off the White House before Mr. Trump’s indictment in the case accusing him of mishandling classified documents.And it cited the case of a Texas woman who has been charged with making death threats to Judge Chutkan last month. She left the judge a voice message using a racist slur, court filings show, and said, “You are in our sights — we want to kill you.”“If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly, bitch,” the message said, adding that “you will be targeted personally, publicly, your family, all of it.”Prosecutors connected their request to the threats and harassment that election officials and other people carrying out election-related duties experienced after Mr. Trump attacked them in late 2020 as part of his false claims that the election had been stolen.“The defendant knows that when he publicly attacks individuals and institutions, he inspires others to perpetrate threats and harassment against his targets,” the motion said, adding: “Given the defendant’s history described above and the nature of the threats to the court and to the government, it is clear that the threats are prompted by the defendant’s repeated and relentless posts.”In that sense, the request for the gag order was as much about what is sometimes called stochastic terrorism — the idea that demonizing someone through mass communication increases the chances that a lone wolf will be inspired to attack the target — as it was about more traditional concerns of keeping a jury from being influenced by statements outside of court.The request raises both legal and political issues and carries the risk of playing into Mr. Trump’s hands.The former president and his defense team have made clear that they want people to think the case is about whether he had a First Amendment right to say whatever he wanted about the election. Mr. Smith sought to head off that move by acknowledging in the indictment that Mr. Trump had a right to lie to the public and by not charging him with inciting the Capitol riot.But the gag order request is directly about what Mr. Trump is allowed to say. Moreover, it has given him more fodder to portray the case as intended to undercut his presidential campaign — and, if he is under a gag order and loses again in 2024, to once again tell his supporters that the election was rigged.Judge Tanya S. Chutkan of the Federal District Court in Washington has ordered Mr. Trump’s legal team to file any opposition to the motion by Monday.Administrative Office of the U.S. Courts, via Associated PressWhen the motion became public, Mr. Trump riffed on it with apparent glee.“They want to see if they can silence me. So the media — the fake news — will ask me a question. ‘I’m sorry, I won’t be able to answer’ — how do you think we’ do in that election?” Mr. Trump said at a summit of religious conservatives. “So we are going to have a little bit of a fun with that, I think. That’s a tough one. Can you imagine?”Implicit in the ways he could “have a little bit of a fun” is the question of how Judge Chutkan could enforce any such order if Mr. Trump skirted its edges or even boldly defied its limits. It would be one thing for her to impose a fine, but if he refused to pay or to tone down his statements, a next step for a judge in a normal case would be to order imprisonment.Any such step in this case would be legally and politically explosive.At a hearing last month, Judge Chutkan vowed to “take whatever measures are necessary to protect the integrity of these proceedings” and warned lawyers for Mr. Trump that they and their client should consider their public statements in the case.“I intend to ensure the orderly administration of justice in this case, as I would with any other case,” she said, “and even arguably ambiguous statements from parties or their counsel, if they could reasonably be interpreted to intimidate witnesses or to prejudice potential jurors, can threaten the process.”The judge also suggested that she could speed up the trial date as an alternative penalty. “The more a party makes inflammatory statements about this case, which could taint the jury pool or intimidate potential witnesses,” she said, “the greater the urgency will be that we proceed to trial quickly to ensure a jury pool from which we can select an impartial jury.”Most cases about gag orders affecting criminal defendants have focused on limits imposed on what their lawyers, not the defendants themselves, can say outside of court — in part because defense lawyers typically order their clients to say nothing in public about their cases anyway. That is one of many ways Mr. Trump operates from a different playbook.In a 1991 case, which prosecutors cited in their motion, the Supreme Court upheld local court rules that bar defense lawyers from making comments outside court that are substantially likely to materially prejudice a jury. Such a regulation, it said, “constitutes a constitutionally permissible balance between the First Amendment rights of attorneys in pending cases and the state’s interest in fair trials.”But the Supreme Court also suggested that greater speech restrictions might be permissible on lawyers because they are officers of the court. The justices have never addressed what standard a gag order on a defendant must meet to pass First Amendment muster. A handful of appeals courts have addressed gag orders imposed on trial participants who are not lawyers and set different standards.Margaret C. Tarkington, a law professor at Indiana University, Indianapolis, and a specialist in lawyers’ free-speech rights, predicted that any gag order would be more likely to survive on appeal if Judge Chutkan barred Mr. Trump only from attacking witnesses and jurors. The First Amendment provides particularly strong protections for criticism of government officials, she noted.Still, Professor Tarkington acknowledged that a gag order that still permitted demonizing the judge and prosecutors would not address much of the concern that prosecutors are raising. She also said past gag-order cases offered few guideposts because Mr. Trump is such a unique figure: His megaphone and its potential impact on his more extreme supporters — as demonstrated by the Capitol attack on Jan. 6, 2021 — puts him in a different realm.“It’s a really hard argument in normal circumstances to say the government, who is prosecuting someone, can shut them up from defending themselves in public,” Professor Tarkington said. “What makes this backward from everything else is that normally, in every criminal prosecution I can think of, the power imbalance is that the state has all the power and the defendant has none. But in this case, you have a defendant who has very significant power.”In their motion to Judge Chutkan, prosecutors also cited an appeals court ruling in 2000 that involved a rare example of a defendant who challenged a gag order. A judge had prevented all trial participants from making statements outside the court “intended to influence public opinion” about the case’s merits, and the defendant, an elected insurance commissioner in Louisiana named Jim Brown, wanted to be exempted. But the appeals court upheld it.The motion said the Brown precedent showed that the reasoning of the 1991 Supreme Court case upholding gag orders on defense lawyers “applies equally” to defendants. But prosecutors omitted another seemingly relevant factor: The gag order was lifted for about two months to avoid interfering with Mr. Brown’s re-election campaign and reimposed only after the election was over.“Brown was able to answer, without hindrance, the charges of his opponents regarding his indictment throughout the race,” the appeals court noted, adding, “The urgency of a campaign, which may well require that a candidate, for the benefit of the electorate as well as himself, have absolute freedom to discuss his qualifications, has passed.” More

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      Trump Could Clinch the Nomination Before the G.O.P. Knows if He’s a Felon

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      The federal election interference case — one of four — is set to start just before Super Tuesday and a cascade of consequential primaries.By the time Donald J. Trump is sitting at his federal trial on charges of criminally conspiring to overturn the 2020 election, he may have already secured enough delegates to effectively clinch the Republican Party’s 2024 presidential nomination.The former president’s trial is scheduled to start March 4, by which point five states are expected to have held nominating contests. The next day, March 5, is Super Tuesday, when 15 states, including delegate-rich California and Texas, plan to hold votes that will determine if any Trump challenger has enough political oxygen to remain a viable alternative.Primaries in Florida, Ohio and Illinois come two weeks later. Florida and Ohio will be the first winner-take-all contests, in which the top vote-getter statewide seizes all of the delegates rather than splitting them proportionally. Winner-take-all primaries have historically turbocharged the front-runner’s path to the presidential nomination. Mr. Trump’s federal trial, if it proceeds on its current timeline, won’t be close to finished by then.The collision course between the Republican Party’s calendar and Mr. Trump’s trial schedule is emblematic of one of the most unusual nominating contests in American history. It is a Trump-dominated clash that will define not only the course of the 2024 presidential primary but potentially the future direction of the party in an eventual post-Trump era.“It’s a front-runner set of rules now,” said Clayton Henson, who manages the ballot access and delegate selection process for the Trump campaign, which has been instrumental in rewriting the rules to benefit him.Mr. Trump has complained the March 4 start date of the trial amounts to “election interference” and cited Super Tuesday, but it is likely to have a greater effect on his ability to campaign for primaries in subsequent weeks. About 60 percent of the delegates will be awarded from contests after Super Tuesday.Generally, defendants are required to be present in the courtroom at their trials. After preliminary matters such as jury selection, prosecutors in Mr. Trump’s election case have estimated they will need about four to six weeks to present their case, after which defense lawyers will have an opportunity to call additional witnesses.That timeline also means it is likely that a majority of the delegates will have been awarded before a jury determines Mr. Trump’s fate.If Mr. Trump holds his dominant polling advantage throughout the primaries but then a jury transforms him into a convicted felon, any forces within the G.O.P. that would want to use that development to stop him would have one last opportunity to block his nomination — the same end-run around voters that officials tried at the party convention in 2016.That possibility would almost certainly lead to a schism between Trump loyalists and what used to be called the party’s establishment, an unpleasant reality in which defeating Mr. Trump could doom Republicans to a long cycle of electoral defeats.“Given what’s happening on the legal front, state parties need to think about what options they’re giving themselves” to allow delegates flexibility at the party’s national convention, said Bill Palatucci, a Republican National Committee member from New Jersey who advises the super PAC supporting Chris Christie and who opposes Mr. Trump.Republican state parties have until Oct. 1 to submit their formal delegate allocation rules to the national committee.“All this is happening so quickly, it’s unprecedented, and so as states formulate what their rules are going to be,” Mr. Palatucci added, “everybody’s got a whole new set of circumstances to consider.”There are no signs that the party’s leadership is contemplating using Mr. Trump’s legal troubles against him. The chairwoman of the R.N.C., Ronna McDaniel, has defended Mr. Trump in numerous media appearances and the committee has been raising money by telling online donors that the former president is the victim of a political prosecution.The chairwoman of the R.N.C., Ronna McDaniel, has defended Mr. Trump.Philip Cheung for The New York TimesOn Monday night, just hours after Judge Tanya S. Chutkan set the March trial date, one of the main organs of the Republican establishment, The Wall Street Journal’s editorial page, sounded the alarm.“Mr. Trump might have the G.O.P. nomination sewn up before a verdict arrives and voters learn whether he’s a convicted felon,” the Journal editors wrote. “This would certainly delight Democrats.”The renewed panic about the possibility of nominating a convicted felon recalls the 2016 effort to block Mr. Trump’s nomination after he had won a clear delegate majority in the primaries.Then, a group of Republican delegates loyal to Senator Ted Cruz of Texas tried to muster support from one-fourth of the convention’s rules committee, a body that meets in the weeks before the national convention, to throw open the nominating contest to the full roster of more than 2,000 delegates. Had they succeeded, the renegade delegates still would have needed a majority vote of all the delegates in order to seize the nomination from Mr. Trump.Now, short of a full capitulation from Mr. Trump, removing him as the nominee at the convention after he has secured enough delegates remains an extreme long shot. A surrender by Mr. Trump seems highly unlikely given that advisers have said he views getting re-elected — and taking command of the pardon power plus control over the Justice Department — as his best insurance policy. Despite Mr. Trump’s claims, however, it is not clear that a president can pardon himself, so he might be on safer legal ground if some other Republican secured the nomination, became president and then pardoned him.The Trump campaign is taking no chances on a contested convention. His team is far more experienced and professional than it was in 2016, when Mr. Cruz’s forces organized state party conventions in Louisiana, Colorado and elsewhere to elect Cruz loyalists as convention rules committee delegates. Mr. Trump has a tighter grip on the party’s grass-roots supporters than he did in 2016, and his aides — including Mr. Henson, Brian Jack, Susie Wiles and Chris LaCivita — have been working for months behind the scenes to ensure he will have loyal delegates in state parties across the country, according to people with direct knowledge of their efforts.Mr. Trump’s team also has a stronger hold on state parties themselves, after three advisers — Bill Stepien, Justin Clark and Nick Trainer — worked to consolidate support within them ahead of the 2020 election to stave off primary challenges to Mr. Trump. Many of those changes, which favor Mr. Trump, remain in place.Mr. Trump himself has gotten involved deep in the weeds of convention politics. He has awarded endorsements not just for state party bosses but for leaders of the two largest county Republican parties in Nevada — the sort of local officials who will have significant influence in choosing which grass-roots leaders will represent their states as convention delegates next July in Milwaukee.This loyalty has already delivered results for Mr. Trump’s campaign. This month, the Nevada Republican Party quietly announced it would not share political data or coordinate with super PACs — a blow to Gov. Ron DeSantis of Florida, who has outsourced much of his campaign’s political operation to the super PAC Never Back Down. Never Back Down is led by Jeff Roe, the architect of Mr. Cruz’s 2016 campaign.Mr. LaCivita said in a statement that “no degree of trickery or gamesmanship” and “no amount of editorials in The Wall Street Journal” would stop Mr. Trump’s nomination at the convention.“There’s been much more attention to detail and focus on those small things,” he added, “that if not attended to early on can lead to big headaches.”Mr. Trump’s aides, like, Susie Wiles and Chris LaCivita, center, have been working for months behind the scenes to ensure he will have loyal delegates in state parties across the country.Christopher Lee for The New York TimesThe mere possibility of a chaotic contested national political convention — a dream of political observers who have known nothing but scripted, made-for-television quadrennial gatherings since 1980 — may inspire well-funded Trump rivals to remain in the race just in case delegates decide it would be foolhardy to anoint a convicted felon as their party’s standard-bearer for the general election.Mr. Trump has vowed to appeal the March 4 trial date in the election case. That is not legally permitted: Generally, grievances over issues like whether a defense team had adequate time to prepare must wait to be taken up on appeal after any guilty verdict.Still, it is possible that his legal team will ask an appeals court or the Supreme Court to intervene before the trial using a long-shot method known as a petition for a writ of mandamus. Higher courts tend to be reluctant to grant such requests to disrupt the normal judicial process and have set a very high bar that must be met before they will consider doing so.Even if a jury acquits Mr. Trump in the federal election case — or one or more holdout jurors produce a mistrial — there are three other cases that could potentially lead to him being a convicted criminal by the time of the convention.He is facing bookkeeping fraud charges in New York, where a trial is set to begin March 25, although it is now might be pushed back. He is set to go on trial in Florida in May on federal charges related to his hoarding of sensitive national-security documents after leaving office. And he has been charged in another 2020 election case in Georgia, for which a trial date has not yet been set.Ben Ginsberg, who for decades was among the Republican Party’s top election lawyers before breaking with the party over Mr. Trump in 2020, said no amount of delegate machinations would be likely to stop a Trump nomination should he win enough early nominating contests.“If he wins Iowa and New Hampshire,” Mr. Ginsberg said, “I think it’s all over anyway.” More

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      Can Trump Appeal His Federal Election Trial Date? What to Know.

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      The ex-president vowed to appeal a judge’s decision to schedule the start on his trial the day before Super Tuesday. He can’t disrupt the trial that way, legal experts say — but there is a longer-shot possibility.Former President Donald J. Trump immediately vowed to challenge the March 4 start date for his criminal trial over his efforts to overturn the 2020 election, raising questions of whether or how he could try to push back the timing of the case.“I will APPEAL!” Mr. Trump wrote on social media shortly after Judge Tanya S. Chutkan issued her order on Monday.But despite complaining about the date, a lawyer for Mr. Trump, John Lauro, said in court that the defense team would abide by her decision “as we must.” Mr. Lauro had proposed the trial begin in April 2026, citing the volume of evidence defense lawyers needed to study, while prosecutors had suggested starting in January.Here is a closer look.Why is March 4 awkward?The date comes in the middle of an already crammed calendar for Mr. Trump, who faces an array of criminal cases and civil lawsuits as he seeks the 2024 Republican presidential nomination.In particular, as Mr. Trump noted, the day after the trial would begin is Super Tuesday, when voters in over a dozen states will cast their primary votes. That voting will take place amid the likelihood of negative headlines pegged to the start of the trial, and his ability to travel and hold rallies campaigning for primaries in subsequent weeks is likely to be limited.Defendants are generally required to be present at their trials. After preliminary matters like jury selection, prosecutors have estimated they will need about four to six weeks to present their case, after which defense lawyers will also have an opportunity to call additional witnesses.Are trial calendars even subject to appeal?Typically, no, but there are complexities.First, Mr. Lauro could file a motion asking Judge Chutkan to reconsider the timing and fleshing out his argument that March 4 does not give the defense enough time to adequately prepare.But if she declines to change it, decisions by a Federal District Court judge over a prospective trial calendar are not usually considered subject to an immediate appeal. Instead, if a claimed problem can be remedied by later overturning any guilty verdict, an appeal raising that issue must wait until after the trial.Indeed, if the former president is convicted, Mr. Lauro appears to be laying the groundwork for Mr. Trump to argue in an appeal after the trial that the start date violated his constitutional right to have meaningful legal representation. Mr. Lauro told the judge on Monday that the defense team would not be able to provide adequate representation to Mr. Trump if it had to be prepared by March 4. Such a trial date would deny his client the opportunity to have effective assistance of counsel, he added.But Mr. Trump has another way to ask a higher court to review the calendar before the trial starts. It is called a petition for a writ of mandamus, and while it is not technically considered to be an appeal, legal experts say, it looks very similar.What is a writ of mandamus?It is a judicial order to a lower-court judge mandating some action. It functions as a safety release valve, allowing what are essentially early appeals. It is reserved for extraordinary situations where a judge has made a mistake that will cause a defendant irreparable harm, so the normal process of waiting until after any guilty verdict to raise the issue on appeal could not provide a remedy.Thus, while Mr. Trump would normally have to wait until after the trial to ask a higher court to review Judge Chutkan’s calendar decision, his defense team could, in theory, try to short-circuit that process by filing a mandamus petition to the Court of Appeals for the District of Columbia Circuit — or even directly to the Supreme Court.Is it easy to win such an order?No. In general, a mandamus petition is very likely to be denied, legal experts say. Higher courts, reluctant to disrupt the ordinary judicial process, have set a steep bar before they agree to intervene this way.In a 1999 ruling, for example, the D.C. Circuit said it would not even consider a mandamus petition based on an argument that the trial judge had made a clearly wrong decision since the problem could be addressed later through an ordinary appeal.“As we have seen, any error — even a clear one — could be corrected on appeal without irreparable harm,” the judges wrote.In a 2004 ruling, the Supreme Court said the right to relief must be “clear and indisputable” and there must be no other adequate means to obtain it. And even then, it said, a higher court still has discretion to decline issuing such an order if it nevertheless believes that intervening would not be “appropriate under the circumstances.”Does Trump have grounds for a mandamus petition?By itself, the objection raised by Mr. Lauro — that March 4 will not give Mr. Trump’s lawyers adequate time to prepare — would almost certainly fall short as a reason for a higher court to intervene early, according to Paul F. Rothstein, a Georgetown University law professor and specialist in criminal procedure.But Professor Rothstein said it was harder to predict what would happen if Mr. Trump’s team also raised an objection the former president has made in his public comments: that the trial date interferes with the election. There is a stronger argument for a claim of irreparable harm since various primaries will be over by the time of a verdict.Still, there is scant precedent to guide a higher court’s decision about whether a trial date’s effect on an election is sufficient to consider intervening early. And even if so, he said, it is also uncertain where the higher court might land on whether the public interest is better served by delaying a trial or by letting it go forward so voters can know about a major candidate’s criminality as soon as possible.“Like so many things with these unprecedented questions that the Trump cases present, the law does not have a definite answer,” Prof. Rothstein said. More