Trump Demands Another Hearing for Federal Gag Order Appeal

Republican presidential candidate former President Donald Trump delivers remarks during a campaign rally at the Reno-Sparks Convention Center in Reno, Nev., on Dec. 17, 2023. Justin Sullivan/Getty Images

On Dec. 18, attorneys for former President Donald Trump made another push to overturn a federal gag order at the U.S. Court of Appeals for the District of Columbia Circuit.

Defense attorneys argue that the appeals panel was wrong on five counts and a rehearing is in order.

“The opinion holds that President Trump must be silenced to protect trial participants from possible threats or ‘harassment’ from unrelated third parties,” the petition reads.

On this point, the appeals court judges adopted the rationale of lower court judges in issuing two separate gag orders on President Trump.

“In doing so, the opinion conflicts with decisions of the Supreme Court and other Circuits, warranting en banc consideration both to secure uniformity of this Court’s decisions and because of the question’s exceptional importance,” they wrote, requesting a hearing before all of the judges in this court.

Contradicting Precedent?

The appeals panel said, first during a hearing and later in the issued opinion, that they sought a balance between First Amendment rights and the need to uphold the integrity of court proceedings.

The defense attorneys argue that the court ultimately accomplished neither and reinforced the gag order based on “a third standard, for which it cites no authority.” When it comes to restricting speech to prevent harm, there is another set of precedents to inform these decisions, and defense attorneys argue that the appellate court judges did not meet those standards, primarily the “clear and present danger” test set by a U.S. Supreme Court ruling.

Defense attorneys also referenced, again, cases in which it was ruled that candidates who were campaigning for political office were given “absolute freedom” in their speech and said the judges didn’t properly consider these cases.

They also brought up again the “heckler’s veto” theory, arguing that the appeals court is making assumptions about anticipated audience reactions, justifying those assumptions “on the basis that the audience is not ‘hostile’ to President Trump, but that justification contradicts the Supreme Court’s incitement doctrine.”

Specifically, the Brandenberg test, which comes from a 1969 First Amendment case on which the U.S. Supreme Court issued a ruling, says that speech “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” isn’t protected.

The defense reiterated the argument that there was no evidence that any prosecutor, potential witness, or court staffer in the federal case specifically was intimidated as a result of President Trump’s speech.

Instead, the appeals court and district court judges, and later the prosecutors, all pointed to a gag order that had been imposed on President Trump in the New York Supreme Court.

During those civil court proceedings, a judge had prohibited President Trump from making statements about his principal law clerk and later prohibited defense attorneys from doing the same.

Legal counsel for the judge and clerk submitted testimony that they had received hundreds of threatening voicemails after President Trump made the initial statement about the clerk on social media the day of the gag order. Defense attorneys argued that the clerk had chosen to pose for pool photos knowing this was a highly publicized case and that the actions of anonymous third parties cannot be tied to President Trump.

That gag order was upheld by an appeals court in New York.

The defense attorneys argue that the appeals court “overlooks and misapprehends points of fact” in its ruling, “mischaracterized” President Trump’s statements, and was wrong in the application of case law.

Case Takes a Turn

The federal criminal case has since been paused in the district court.

After Judge Tanya Chutkan denied a motion to dismiss the case based on presidential immunity, President Trump’s team took the case to the appeals court.

Soon after, prosecutors requested an expedited process in the appellate court and an immediate review regarding presidential immunity from the U.S. Supreme Court, arguing that it’s in the public interest to try the case quickly and hold fast to the trial date of March 4, 2024.

The requests were granted in both courts.

In the appeals court, President Trump’s team argued that prosecutors inaccurately characterized the nature of the defense in their Supreme Court petition.

Prosecutors are asking the high court to rule on whether former presidents can be prosecuted for crimes they committed while in office—something not protected by presidential immunity, which confers immunity from civil suits to presidents.

Defense attorneys say their appeal is arguing that presidents are shielded from prosecution for official acts of office—in this case, the investigation of alleged election fraud.