Appeals court largely upholds Trump gag order in election interference case
Donald Trump may now assail the special counsel who brought the federal criminal case against him over his efforts to overturn the 2020 election results, in addition to being free to criticize the judge, the justice department, the Biden administration and the case as politically motivated.
The former president remains barred, however, from attacking potential trial witnesses, court staff or the special counsel’s staff, as well as the family members of any court staff or the special counsel’s staff.
That was the ruling handed down on Friday by the US court of appeals for the DC circuit, which found that Trump’s inflammatory statements posed a threat to the fair administration of justice and only partly narrowed the gag order imposed by the federal judge overseeing the case in Washington.
“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 decision by the three-judge panel marks the latest defeat for Trump over the gag order, which was entered by the US district judge Tanya Chutkan in October after prosecutors complained that Trump’s statements and social media posts could intimidate potential trial witnesses.
Trump is expected to appeal the ruling to the US supreme court, people close to his legal team said on Friday. A Trump spokesperson added: “President Trump will continue to fight for the First Amendment rights of tens of millions of Americans to hear from the leading presidential candidate at the height of his campaign.”
The ruling from the three circuit judges – all Democratic appointees – struck a cautious balance between allowing Trump to criticize the case as a political vendetta while he runs for re-election, and protecting the people involved in the case who Trump has targeted in his statements.
In particular, the judges concluded that the original gag order was too broad in preventing Trump from personally attacking the special counsel Jack Smith. They also narrowed the order to say Trump can attack people involved in the post-2020 election matters as long as he does not target their trial testimony.
But the judges were adamant that Trump’s relentless attacks clearly threatened the integrity of proceedings because his statements about potential witnesses could chill their testimony at trial while his statements about court staff could impede them from fulfilling their jobs.
“Mr Trump’s documented pattern of speech and its demonstrated, real-time, real-world consequences pose a significant and imminent threat to the functioning of the criminal trial process in this case,” the opinion said.
The judges also rejected all three of Trump’s arguments for lifting the gag order in its entirety, finding that his lawyers appeared to take the extreme position that only Trump’s first amendment rights – and no other consideration – mattered when it came to restricting his speech.
They wrote that they found untenable Trump’s position that there could only be a gag order after a Trump state
ment caused harm or chilled a witness, not least because the point of a protective order was to ensure no such harm would occur in the first place.
They also rejected Trump’s complaint that a gag order amounted to being bound by a “heckler’s veto” – gagging a defendant merely because of fears about how a third party might act – because the court had an obligation to ensure third parties did not threaten proceedings.
The judges were also unimpressed with Trump’s argument that his political speech mattered more than criminal trial proceedings. “The existence of a political campaign,” the court wrote, “does not alter the court’s historical commitment or obligation to ensure the fair administration of justice.”