REUTERS/Andrew Kelly
In fighting to be released on bail as early as Thanksgiving, Sean "Diddy" Combs is now turning for help to the one federal defendant more famous than himself: President-elect Donald Trump.
Combs' lawyers cited Trump on Monday in a legal brief meant to counter prosecutors' claim that he has improperly tried to influence prospective jurors in his sex-trafficking case through an online public relations campaign.
Combs' lawyers quote an appellate decision in Trump's DC election interference case, which asserted that defendants enjoy broad free-speech rights under the First Amendment.
"Only a significant and imminent threat to the administration of criminal justice will support restricting Mr. Trump's speech," the DC Circuit Court of Appeals wrote in a decision from December that Combs' lawyers now quote.
Like Trump, Combs is a criminal defendant with the presumption of innocence, the rap mogul's lawyers wrote Monday.
That means Combs, like Trump or any other federal criminal defendant, has a greater constitutional claim than other trial participants — including his lawyers — "to criticize and speak out against the prosecution and the criminal trial process that seek to take away his liberty," Combs' eight-page filing says.
"Accordingly, the Court should apply Trump's heightened standard when considering Mr. Combs' speech here," the filing adds.
The defense team is responding to US District Court Judge Arun Subramanian, who last week asked both sides to explain why Combs' public communications from jail either do or do not constitute obstruction of justice.
Prosecutors argued last week that Combs has been orchestrating a PR campaign while locked up at a Brooklyn detention facility, where he is awaiting a May 5 trial date in federal court in Manhattan.
In one example prosecutors cited, Combs urged family members to create an Instagram post in which they display support for him while celebrating his 55th birthday.
Combs used a messaging app forbidden by the Bureau of Prisons, contactmeasap.com, in arranging for the post, prosecutors argued last week.
Combs ignored his own lawyers' warnings in doing so, telling them, "I don't care. It's my birthday," lead prosecutor Christy Slavick had argued in a bail hearing Friday.
In addition to the texting app, Combs used at least eight other inmates' phone accounts and had third parties patched into his phone calls, all of which is forbidden by prison rules, Slavik told the judge.
These violations were committed with "the intent to subvert the integrity of these proceedings," in ways that go beyond a simple "PR campaign" to burnish his image, she told the judge.
"He is saying I want to, quote, 'reach for this jury. I just need one,'" Slavik told the judge Friday, quoting from Combs' jailhouse communications.
On Monday, Combs' lawyers told the judge that he has the right to fight back against the barrage of "false and outrageous claims" being made against him for months by "government agents, plaintiffs' attorneys, and others with questionable motives."
"This nonstop drumbeat of negative publicity has destroyed his reputation and will make it virtually impossible for him to receive a fair trial," they wrote.
"Mr. Combs is not required to sit idly by and acquiesce to all of this. He has a right to a fair trial and a constitutional right to speak out on his own behalf," they wrote.
The filing, signed by defense attorney Alexandra A. E. Shapiro, added that Combs has not disclosed false or non-private material, or done anything else improper.
"The government's arguments that asking his children to post birthday wishes on Instagram and that he is not entitled to publicly express his opinion that this prosecution is racially motivated are, quite simply, an unconstitutional effort to silence him," the lawyers wrote.
Prosecutors did not immediately file a response to Combs' filing. The judge told the parties on Friday that he would decide on Combs' latest bail application — his third — sometime this week.
The Trump decision cited by Combs said, "Mr. Trump is free to make statements criticizing the current administration, the Department of Justice, and the Special Counsel, as well as statements that this prosecution is politically motivated or that he is innocent of the charges against him."
The order was not made lightly, the December appellate decision added. "Mr. Trump is a former President and current candidate for the presidency, and there is a strong public interest in what he has to say," it said.
"But Mr. Trump is also an indicted criminal defendant, and he must stand trial in a courtroom under the same procedures that govern all other criminal defendants. That is what the rule of law means."
