TRUMP GAG ORDER UPHELD, NARROWED
Appeals court aims to balance his rights, safety of others
A federal appeals court Friday upheld the gag order imposed two months ago on former President Donald Trump in the criminal case accusing him of plotting to overturn the 2020 election, but narrowed its terms to allow him to keep attacking one of his main targets: Jack Smith, the special counsel overseeing his federal prosecutions.
The fight over the gag order has pitted the First Amendment rights of a presidential candidate against fears that his vitriolic language could spur his supporters to violence against participants in the case. While the U.S. Court of Appeals for the District of Columbia Circuit agreed that a gag order was justified, its adjustments gave Trump broader latitude to lash out at some of the people he has been targeting for months.
In its ruling, a threejudge panel sought to strike a cautious balance between what it called “two foundational constitutional values”: the integrity of the judicial system and Trump’s right to speak his mind.
To that end, the panel kept in place the gag order’s original measures restricting Trump from attacking any members of Smith’s staff or the court staff involved in the case. It also preserved provisions that allowed Trump to portray the prosecution as a political vendetta and to directly criticize the Biden administration and the Justice Department.
And in one respect, the court expanded the restrictions, adding a measure banning Trump from commenting on the relatives of lawyers or court staff members involved in the case if the remarks were intended to interfere with how the trial participants were doing their jobs.
“We do not allow such an order lightly,” Judge Patricia Millett wrote 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.”
But the court cut back on the gag order in two important ways. In addition to freeing Trump to go after Smith, the public face of the prosecution, it relaxed a flat restriction against targeting witnesses — allowing Trump
to criticize them if his remarks were not connected to their roles in the case.
After the trial judge, Tanya Chutkan, first imposed the gag order on Trump in U.S. District Court in Washington in October, Trump appealed, seeking to get it overturned entirely as unconstitutional. As it hinted it might do at oral arguments last month, the appellate panel instead kept a version in place but modified some of its terms.
The modifications to the
order mean that Trump can now return to using some of his favorite social media epithets and refer to Smith, as he has numerous times, as a “thug” or as “deranged.” The alterations also mean that Trump can lash out in a limited way against those of his political adversaries who also may be witnesses in the election interference trial, including former Vice President Mike Pence and former Attorney General William Barr.
Asked for comment, the Trump campaign issued a statement saying the appeals court had struck down “a huge part of Judge Chutkan’s extraordinarily overbroad gag order.” Trump’s lawyers have promised to challenge the gag order all the way to the Supreme Court.
The appeals court’s ruling rejected many of Trump’s legal team’s arguments for lifting the gag order entirely, including that his remarks are all constitutionally protected as political speech, that he could not be held responsible for his listeners’ responses to his speech, and that the court could not proactively gag him before any harm was shown to have occurred.
“Many of former President Trump’s public statements attacking witnesses, trial participants, and court staff pose a danger to the integrity of these criminal proceedings,” Millett wrote. “That danger is magnified by the predictable torrent of threats of retribution and violence that the district court found follows when Mr. Trump speaks out forcefully against individuals in connection with this case and the 2020 election aftermath on which the indictment focuses.”
But the original order, she said, “sweeps in more protected speech than is necessary,” so the First Amendment required a narrower tailoring of the restriction.
The decision by the appeals court means that the two gag orders placed on Trump — one in the federal election case and the other in his civil fraud case in Manhattan — have now been reinstated after judges had temporarily paused them.