A three-judge panel of the U.S. Court of Appeals for the District of Columbia affirmed a gag order that U.S. District Court Judge Tanya Chutkan originally issued, prohibiting former President Donald Trump from making statements that target several groups of people involved in a case accusing him of interfering with the 2020 elections.
The former president is prohibited from “making or directing others to make public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding.” Previously, the order prohibited President Trump from making any statements that would “target” any potential witness, or the content of their potential testimonies.
However, he is prohibited from making statements about his staff, including other federal attorneys, their families, and any court staff and their families “if those statements are made with the intent to materially interfere with, or to cause others to materially interfere with, counsel’s or staff’s work in this criminal case, or with the knowledge that such interference is highly likely to result.”
This qualifies the original gag order’s prohibiting of statements that merely “target” legal and court staff.
“We vacate the Order to the extent it covers speech beyond those specified categories,” it reads.
The appellate panel adopted Judge Chutkan’s rationale, writing that “some aspects of Mr. Trump’s public statements pose a significant and imminent threat to the fair and orderly adjudication of the ongoing criminal proceeding,” and warranted a gag order.
“However,” they noted, the original gag order “sweeps in more protected speech than is necessary. For that reason, we affirm the district court’s order in part and vacate it in part.”
The opinion had been partially redacted, and the court has given the parties a Dec. 18 deadline to argue on whether the redactions should be unsealed.
The new order also reiterated Judge Chutkan’s explanation that President Trump is allowed to make statements criticizing the Biden administration, including the Department of Justice, and statements about his belief that the prosecution is politically motivated.
“We do not allow such an order lightly,” wrote Judge Patricia Ann Millett for the panel. “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. 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.”
The panel also included Judges Cornelia Pillard and Bradley Garcia. Judges Millet and Pillard were appointed by President Barack Obama, and Judge Garcia was appointed by President Joe Biden.
The Trump Campaign issued a statement on the order, claiming the prosecution has been politically motivated.
“Today, the D.C. Circuit Court panel, with each judge appointed by a Democrat President, determined that a huge part of Judge Chutkan’s extraordinarily overbroad gag order was unconstitutional,” Trump Campaign spokesperson Steven Cheung stated. “President Trump will continue to fight for the First Amendment rights of tens of millions of Americans to hear from the leading Presidential candidate at the height of his campaign. The Biden-led witch hunts against President Trump and the American people will fail.”
Balance
During an earlier hearing, the panel stressed they sought to balance First Amendment issues with the need to protect the integrity of the proceedings. To that effect, Judge Millet stressed in the opinion that the order must be narrowed.The opinion cites several social media posts and quotes in which President Trump singled out individuals, including “several state and local officials.”
The special counsel’s office had provided testimony from some of these officials who said that after President Trump’s posts on social media, they received threats that were “graphic” and “specific” in nature, sometimes including names and photos of family members and their homes.
The prosecutors had sought to establish a pattern or dynamic of harassment as the basis for a gag order. Defense attorneys argued that they provided no such evidence tied to this case specifically.
The appeals court opined that criminal defendants should be able to speak “on specified matters pertaining to the criminal trial.”
The judge wrote that they gave considerable weight to First Amendment rights and concluded that President Trump’s right to a fair trial does not give him the right to “a trial prejudiced in his favor.”
The partial affirmation of the gag order is rooted, legally, in the court’s duty to “protect the integrity of the criminal justice process,” Judge Millet elaborated, noting the high-profile nature of the case and “extensive media coverage and interest.”
Election Case Enters New Stage
President Trump was charged on four counts in the election case, which has just entered a new phase of pretrial litigation.Judge Chutkan recently rejected two of President Trump’s four motions to dismiss the case, setting up grounds for an appeal.
On Dec. 7, President Trump’s legal team filed a notice of appeal, and motion to stay all proceedings while this is underway, in all likelihood jeopardizing the March 4, 2024, trial date the judge has steadfastly reaffirmed.
The special counsel’s office had acknowledged that a stay was in order while the case heads to the appeals court, but had argued that pretrial motions should continue on schedule. The defense argued in an 11-page motion that precedent shows all proceedings should be halted, given that the case may not move forward should the appeal succeed.
