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Appeals court upholds most of Trump gag order in DC case

The former president could appeal the D.C. Circuit decision over what he has argued is a violation of his free speech rights

The E. Barrett Prettyman United States Courthouse in Washington.
The E. Barrett Prettyman United States Courthouse in Washington. (Bill Clark/CQ Roll Call file photo)

A federal appeals court on Friday mostly upheld a trial judge’s gag order restricting former President Donald Trump’s speech about witnesses and court staff tied to the federal case alleging Trump committed crimes while trying to overturn the 2020 election.

Friday’s unanimous decision from a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld the decision by Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia, who is overseeing the case.

Trump has argued that the order violated his free speech rights and ability to speak about what he views as a politically motivated prosecution.

The decision largely upheld Chutkan’s order limiting statements Trump can make about witnesses, court staff and special counsel staff. But the appeals court wrote it would not restrict Trump’s speech about special counsel John L. “Jack” Smith, who has been a frequent target of Trump’s criticism, and would allow Trump to make some statements about potential witnesses.

Trump could appeal the ruling, which is a setback for the former president, who has rolled his rhetoric criticizing the prosecution into his ongoing reelection campaign.

D.C. Circuit Judge Patricia A. Millett, a Barack Obama appointee, wrote that Trump does not have a special right to speak because of his status as former president or candidate for office. Millett wrote that the court doesn’t do so “lightly” but would affirm the trial judge’s ability to protect the criminal process.

“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,” Millett wrote.

A spokesman for Trump’s presidential campaign praised the parts of the ruling that narrowed the gag order in a statement but said Trump would continue to fight the order.

“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 Biden-led witch hunts against President Trump and the American people will fail,” the statement said.

Prosecutors first unveiled the case against Trump in August, charging him with four counts connected to an alleged broad plan to overturn his loss in the 2020 election, which involved pressuring state officials to stop counting votes and Justice Department officials to issue false statements about fraud, and to have then-Vice President Mike Pence throw out the Electoral College votes of states that President Joe Biden won. Trump has pleaded not guilty to the charges.

Chutkan issued the partial gag order in October following months of Trump posts about her, Smith, potential witnesses in the case and the jury pool in Washington. During a hearing in October, Chutkan cited Trump’s long history of attacking perceived opponents, including a judge in a New York civil fraud case against him. At the time, Chutkan said violating the order could carry fines or the movement of the trial currently scheduled for March.

Trial judges such as Chutkan have broad powers over how to govern their courtrooms, Millett wrote, and Chutkan found that Trump had repeatedly publicly attacked witnesses in the case and that witnesses had been reluctant to speak with investigators in the past because of Trump’s statements.

“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.

Millett rejected Trump’s arguments that he should not face restrictions on his speech because of his campaign for office, or that restrictions should cover only speech that presented a “clear and present” danger to the criminal proceedings.

But Millett did write that the original order restricting Trump from any speech that “targeted” witnesses, court staff or prosecutors was too broad. Friday’s opinion held that Trump cannot make statements about potential witnesses, staff or others’ participation in the trial, rather than statements about them more broadly.

The opinion cited a few posts Trump made on social media about two potential witnesses: in response to former Attorney General William Barr’s criticism after a book publication and in response to a report that former White House Chief of Staff Mark Meadows may be cooperating with federal prosecutors.

In the first, Trump made general criticisms of the “slow-thinking and lethargic Bill Barr” that didn’t concern his trial testimony, Millett wrote. In the latter, Trump wrote that Meadows may “make up some really horrible ‘STUFF’” as part of a cooperation deal, which Millett said would clearly fall under a gag order because it concerned Meadows’ testimony.

Trump can appeal the decision to the full D.C. Circuit or the Supreme Court. He has already indicated he intends to litigate many aspects of the D.C. federal case against him. On Thursday, Trump filed a notice he intends to appeal Chutkan’s denial of several of his motions to dismiss the case entirely.

The 2020 election case in Washington is one of four federal prosecutions against the former president, including another federal case in Florida, where Trump faces allegations he mishandled highly classified documents after the end of his presidency.

Georgia prosecutors have also alleged Trump and more than a dozen co-conspirators engaged in a broad effort to overturn the 2020 election, and prosecutors in New York have pursued charges that Trump falsified business records to hide hush money payments as part of his 2016 presidential campaign.

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