Appeals Court to Hear Arguments on Trump Gag Order

Former President Donald Trump sits in the courtroom during his civil fraud trial at New York State Supreme Court in New York City on Nov. 6, 2023. Curtis Means/Pool/Getty Images

A panel of three judges in the U.S. Court of Appeals for the D.C. Circuit will hear arguments on Nov. 20 regarding the gag order on former President Donald Trump, which has prohibited him from speaking about his prosecutors and others as he campaigns for reelection.

The order has since been temporarily lifted while the defense appeals it.

President Trump’s team is expected to argue that the order is overly broad, highly speculative, and a violation of the candidate’s First Amendment rights.

Attorneys from special counsel Jack Smith’s office are expected to counter that the order is narrowly tailored, and thus admissible, because it allows the former president to freely criticize his chief political rival, President Joe Biden, and his administration.

Original Order

The original order was issued in October by U.S. District Court Judge Tanya Chutkan and had been lifted for just a few days when President Trump filed a notice of appeal but was reinstated after both parties filed briefs to the court. The prosecutors had initially sought a gag order against comments of an “inflammatory” nature, arguing that President Trump could potentially be influencing jurors in his favor, particularly with criticism of the special counsel’s office and the current administration.

Judge Chutkan had, instead, issued a gag order that prohibited all parties from making statements that would “target” the prosecution or defense attorney teams, court staff, and any potential witnesses, including the substance of their potential testimonies. At the time the order was issued, that would have precluded President Trump from speaking about former Vice President Mike Pence, who was still campaigning as a Republican candidate and is a potential witness in the case.

The judge reasoned that witnesses should be protected from threats and intimidation or even praise that might sway their testimony or have the appearance of doing so.

President Trump has been charged with four counts related to allegations that he interfered with the 2020 elections, including through his actions on Jan. 6, 2021. In November 2022, shortly after President Trump announced his campaign, Mr. Smith was appointed special counsel on matters related to Jan. 6, 2021.

Arguments

Defense attorneys say such a gag order is unprecedented and prevents a leading candidate from speaking about a major political issue. They say President Trump is being prosecuted for actions made during his last days in office as president, and attorneys argue that the gag order also infringes on the public’s right to hear what the former president has to say.

Attorneys general in several states have said the same, signing onto an amicus brief filed by Iowa Attorney General Brenna Bird. As home to the first-in-the-nation caucus, the Iowa attorney general argued that voters deserve to hear President Trump speak on this political issue. The America First Legal Foundation and Christian Family Coalition Florida have also filed amicus briefs arguing that the gag order is unconstitutional.

Prosecutors had originally requested a gag order of a slightly different nature and rationale than what Judge Chutkan ultimately issued, although they’ve argued to keep the gag order as is in court filings.

In a Nov. 14 brief, the special counsel’s office claimed that it has received threats from supporters of President Trump, which came as “part of a pattern” that they say those President Trump speaks about are “subject to harassment, threats, and intimidation.”

Several times, they referred to a social media post that President Trump made days after he was indicted on Truth Social, where he wrote, “If you go after me, I’m coming after you!!” in all capitalized letters, seeming to refer to the prosecutors.

“There has never been a criminal case in which a court has granted a defendant an unfettered right to try his case in the media, malign the prosecutor and his family ... after threatening witnesses and others,” they wrote. “The defendant nevertheless claims that the First Amendment grants him an unfettered right to do these things, and more.”

Defense attorneys, the appellants, are expected to ask prosecutors, the appellees, to present evidence that President Trump’s speech has resulted in parties being intimidated or influenced to such a degree that it has affected the upcoming trial.

Second Gag Order Lifted During Appeal

President Trump had been issued another gag order in a New York civil case, where presiding New York Supreme Court Justice Arthur Engoron forbade President Trump, and later his attorneys, from making statements about his staff or the communications between the judge and his staff.

That order was recently also temporarily lifted, pending the defense’s appeal.

“Considering the constitutional and statutory rights at issue an interim stay is granted,” New York Appellate Division Associate Justice David Friedman wrote on Nov. 16.

Justice Engoron frequently confers with his principal law clerk, Allison Greenfield, and the clerk became the center of some controversy during the trial.

A social media post recirculated by President Trump on the second day of the trial resulted in a gag order after he shared a photo of Ms. Greenfield posing with Sen. Chuck Schumer (D-N.Y.) at a political event and made insinuations about their relationship. Ms. Greenfield is a Democrat and ran for a Manhattan Civil Court previously, prompting President Trump and his attorneys to question her partisanship based on statements and contributions she made while she campaigned, in light of the fact that she communicates with Justice Engoron constantly during the trial.

In rejecting a motion for a mistrial, Justice Engoron pushed back on the accusations of “co-judging” with his clerk, saying his rulings were “mine, and mine alone.”