Appeals court could loosen Trump gag order
What happened
A federal appeals court this week appeared likely to narrow the gag order imposed on Donald Trump in his Washington, D.C., election obstruction case, after judges wrestled at a hearing with how to balance the former president’s free-speech rights and the need to protect prosecutors, witnesses, and court staff from his inflammatory comments. The three-judge panel from the D.C. Circuit Court of Appeals was considering limiting who’s covered by the gag order, potentially opening special counsel Jack Smith up to attacks from Trump. “There’s a balance that has to be undertaken here,” said Judge Patricia Millett, a member of the panel. “We’ve got to use a careful scalpel here and not step into really sort of skewing the political arena, don’t we?”
Imposed last month by U.S. District Judge Tanya Chutkan, the gag order prohibits Trump from making public statements targeting the prosecution, defense, court staff, or potential witnesses, although arguing that his prosecution is politically motivated is allowed. After a gag order was paused in Trump’s New York civil fraud trial last week, the former president immediately took the opportunity to attack the judge. He called Judge Arthur Engoron’s actions “Radical and Unprecedented” and derided a court clerk as “politically biased,” “out of control,” and “Trump Hating.” The leading Republican presidential candidate, who’s facing 91 state and federal felony charges in multiple cases, also shared a threatening Truth Social post by Monica Crowley, a former Trump administration official. Crowley wrote that the people who “framed Trump…will pay.”
What the columnists said
This is Trump’s “‘heads-I-win, tails-you-lose’ legal challenge,” said Stephen Collinson in CNN.com. Trump’s legal team argues that just about any limits on him affect “core political speech.” If that argument gains traction and the gag order is limited to, say, speech about potential witnesses, he can use the precedent to fight similar orders in other cases. And if the order remains untouched, he walks away with “a new talking point for his narrative that he’s being persecuted to destroy his 2024 campaign.”
Prosecutors are in “an impossible spot,” said Jose Pagliery in The Daily Beast. They know that the free-speech limits they’re asking for might sound “Orwellian,” but “anything short could give Trump the wiggle room to provoke threats and even violence.” Trump’s “hostile rhetoric” has already led to at least one death threat against Chutkan, so let’s not forget that “the stakes are as high as Trump Tower.”
The fight is about “something much bigger” than a single gag order, said Ryan Lizza in Politico. Trump has emphasized his status as a presidential candidate in court, using it “as a shield” against limits on his speech, while Chutkan has focused on his status as a criminal defendant, reasoning that he should be subject to the same rules as other defendants. But we’re entering a new “phase where courtroom legal strategy is becoming more intertwined with campaign political strategy.” If the appeals panel narrows Chutkan’s order because Trump is running for office, it would be “a significant vindication of the larger Trump strategy.”