Court rejects Trump’s request to reconsider appeal against gag order in election interference case
A federal appeals court on Tuesday rejected Donald Trump’s request that it reconsider his appeal against a gag order imposed against him in the criminal case over his efforts to overturn the 2020 election results, the latest defeat for the former president in his attempt to remove the restrictions.
The decision by the US court of appeals to deny Trump an “en banc” rehearing – where the full bench of judges consider the matter – paves the way for him to lodge a final appeal with the US supreme court.
For months, Trump has been attempting to free himself from a limited protective order entered by the US district judge Tanya Chutkan, who is overseeing the criminal case in Washington, which has prevented him from making inflammatory statements that could intimidate trial witnesses or poison the jury pool.
The gag order came after special counsel prosecutors complained that Trump’s brazen public statements attacking them, court staff and potential trial witnesses could chill witness testimony and impede the fair administration of justice.
The filing from prosecutors drew attention to Trump’s rally speeches and posts on his Truth Social platform. In one post, Trump attacked his vice-president, Mike Pence, wildly claiming he had “made up stories about me” and had gone over to the “dark side” by talking to prosecutors.
Trump has also attacked Gen Mark Milley, the former chair of the joint chiefs of staff and another likely trial witness, after his testimony was cited in the indictment. Trump suggested that Milley had committed treason and mused that people who committed treason have historically been executed.
Chutkan agreed with prosecutors and issued an order preventing Trump from assailing prosecutors, court staff and trial witnesses. She allowed Trump only to have free rein to attack the Biden administration and the US justice department, and to allege the case was politically motivated.
Trump appealed but had his challenge largely rejected by a three-judge panel at the DC circuit, which upheld the restrictions with the caveat that Trump would also be free to assail the special counsel Jack Smith and people involved in post-2020 election matters as long as he did not target their trial testimony.
The panel rejected Trump’s position that there could only be a gag order after a statement by him had chilled a witness to be misguided, not least because the point of the gag order was to ensure no such harm would occur in the first place.
“Mr Trump is a former president and current candidate for the presidency,” the appeals court wrote in a 68page opinion. “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.”
The defeat led Trump to seek a rehearing from the same three-judge panel of Patricia Millett, Cornelia Pillard and Brad Garcia – all Democratic nominees to the bench – as well as from the full court. On Tuesday, Trump had both
of the rehearing requests turned down in single-page orders.
The chilly reception that Trump has received from the DC circuit over his gag order appeals has been unsurprising. Protective orders are standard in criminal cases, and federal appeals courts are generally loath to interfere with the wide discretion enjoyed by trial judges.