Attorneys General Argue Against ‘Overly Broad’ Trump Gag Order

Former US president and 2024 Republican president candidate Donald Trump speaks at a campaign rally in Claremont, New Hampshire, on November 11, 2023. (Photo by JOSEPH PREZIOSO / AFP) Photo by JOSEPH PREZIOSO/AFP via Getty Images

Attorneys general in 18 states have come out in support of former President Donald Trump’s appeal against the gag order imposed on him in a federal criminal case in Washington.

Iowa Attorney General Brenna Bird submitted the brief, arguing that her state will be hosting the first-in-the-nation caucuses just two months after submitting the filing, and a major candidate has been gagged.

She was joined by attorneys general in West Virginia, Alabama, Alaska, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, and Utah. The American First Legal Foundation has also filed a motion to submit an amicus brief for the appeal. In the case itself, U.S. District Court Judge Tanya Chutkan has thus far summarily rejected third-party filings, including a brief from the American Civil Liberties Union (ACLU) against the gag order.

The attorneys argue that the judge “overstepped” in issuing an “overly broad” and “impermissibly vague” gag order that violates the campaigning former president’s First Amendment rights.

“That overbroad Order—an order that a major United States presidential candidate mute himself on a major campaign issue—cannot survive any level of scrutiny,” the filing reads.

‘Target’

Judge Chutkan’s order forbade parties in the case from making statements that “target” the prosecution and defense legal teams and staff, court staff, and potential witnesses and the substance of their testimonies.

In the original opinion attached to the order, the judge did not elaborate on her choice of the word “target,” leading to the defense arguing that the order was neither limited nor narrowly tailored, as a gag order would need to be. Orders that curtail First Amendment rights to free speech have been issued in multiple criminal cases, but they must be done as the “least restrictive means” to achieve the purpose, according to case precedent.

The attorneys general echoed that argument in their brief, saying the order effectively results in “prior restraint” that would “unlawfully chill President Trump’s speech,” criticizing the “slipperiness” of the word “target.”

However, in an opinion Judge Chutkan filed after President Trump requesting lifting the gag order while he appealed it, the judge elaborated that her use of “target” was indeed meant to prevent statements of either a positive or negative nature. The order is meant to prohibit both “risks associated with criticizing potential witnesses” as well as “using praise rather than criticism” to “affect potential witnesses’ testimony,” she wrote.

Campaign Topic

The attorneys general say that their states are “home to upcoming caucuses and primaries,” and “indeed, our citizens have an interest in hearing from major political candidates in that election,” arguing that the gag order would impact the states’ abilities to have “free and fair elections.”

“As Americans turn their attention to the upcoming presidential election, there should be special care taken to ensure that they can judge the candidates on their own merits,” the brief reads.

They argue that there is “significant national media attention and analysis” of anything president Trump says, and this case “is a central issue in his reelection campaign.”

“Other potential witnesses are speaking about President Trump’s candidacy. And multiple candidates campaigning against him have invoked the criminal charges against President Trump,” they wrote.

The attorneys warned that allowing the gag order to stand could have potential ramifications on future campaigns, and that was “deeply unsettling.”

“Political opponents and opportunistic litigators may seek to stymie debate by relying on the precedent set here. Such an outcome would be an unwelcome burden on the democratic process,” they wrote.

Gag Order

Prosecutors had originally proposed a gag order to limit “inflammatory” or “disparaging” statements by President Trump, arguing he may influence the jury pool in his favor by continuing to make social media posts and other statements.

After a lively court hearing, Judge Chutkan issued a gag order of a different nature, limiting the subjects on which President Trump can speak rather than the tone. She made a point to specify that this would not prohibit President Trump from making general statements about President Joe Biden, his administration at large, the Department of Justice, or that the case was politically motivated.

During the hearing, the prosecutors and judge pointed to social media posts President Trump had made in the past, such as calling U.S. Attorney General Bill Barr and his former vice president, Mike Pence, names. They referenced another gag order issued by a New York judge who barred President Trump from speaking at all about his staff, and applied similar reasoning that a gag order would impede harassment or threats to these parties.

The attorneys general argue, again echoing defense attorneys, that there was no evidence provided that showed “any group protected by the entered order—prosecutor, witness, or court staff—experienced threats or harassment following any of President Trump’s ‘communications with the electorate’ that would justify prior restraint.

“The Order must fail strict scrutiny,” they wrote.