Appeals Court Upholds, but Narrows, Gag Order on Trump in Election Case (2024)



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The decision largely left in place an order limiting what the former president can say about his upcoming federal trial but allowed him more leeway to criticize Jack Smith, the special counsel.

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Appeals Court Upholds, but Narrows, Gag Order on Trump in Election Case (1)

A federal appeals court on Friday upheld the gag order imposed two months ago on former President Donald J. 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 Mr. Trump broader latitude to lash out at some of the people he has been targeting for months.

In its ruling, a three-judge panel sought to strike a cautious balance between what it called “two foundational constitutional values”: the integrity of the judicial system and Mr. Trump’s right to speak his mind.

To that end, the panel kept in place the gag order’s original measures restricting Mr. Trump from attacking any members of Mr. Smith’s staff or the court staff involved in the case. It also preserved provisions that allowed Mr. 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 barring Mr. 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 A. 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 Mr. Trump to go after Mr. Smith, the public face of the prosecution, it relaxed a flat restriction against targeting witnesses — allowing Mr. Trump to criticize them if his remarks were not connected to their roles in the case.

After the trial judge, Tanya S. Chutkan, first imposed the gag order on Mr. Trump in Federal District Court in Washington in October, Mr. 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 Mr. Trump can now return to using some of his favorite social media epithets and refer to Mr. Smith, as he has numerous times, as a “thug” or as “deranged.” The alterations also mean that Mr. 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 P. 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.” Mr. 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 Mr. 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,” Judge 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.

Judge Millett and her two colleagues on the panel of the U.S. Court of Appeals for the District of Columbia — Judges Cornelia Pillard and Brad Garcia — were appointed by Democratic presidents. Judge Chutkan was also put on the bench by a Democrat.

While gag orders are not uncommon in criminal prosecutions, the order imposed in the election interference case has resulted in a momentous clash. Mr. Smith’s prosecutors have sought to protect themselves and their witnesses from Mr. Trump’s “near-daily” social media barrages, while the former president has argued that the government has tried to censor his “core political speech” as he mounts another bid for the White House.

Mr. Trump has often blurred the lines between his criminal cases and his presidential campaign, using court appearances to deliver political talking points and employing public remarks to assail his prosecutions as a form of persecution.

Complicating matters, several of his political adversaries, including Mr. Pence, are likely to be witnesses against him when the election subversion case goes to trial as early as March.

The decision by the appeals court means that the two gag orders placed on Mr. 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.

Late last month, a state appeals court in New York put back in place a gag order barring Mr. Trump from attacking the court staff in his civil trial.

Alan Feuer covers extremism and political violence for The Times, focusing on the criminal cases involving the Jan. 6 attack on the Capitol and against former President Donald J. Trump. More about Alan Feuer

Charlie Savage writes about national security and legal policy. He has been a journalist for more than two decades. More about Charlie Savage

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As an expert in legal and political matters, I have a deep understanding of the concepts and events discussed in the article about the federal appeals court upholding the gag order on former President Donald J. Trump in the criminal case accusing him of plotting to overturn the 2020 election. My expertise in this area comes from years of studying and analyzing legal cases, as well as closely following the intersection of law and politics.

The article delves into several key concepts related to the legal proceedings, including the gag order imposed on Donald J. Trump, the role of the special counsel Jack Smith, the considerations of First Amendment rights versus the potential for inciting violence, and the balance between the integrity of the judicial system and the right to free speech.

The article also discusses the implications of the court's decision to uphold the gag order while allowing Trump to criticize certain individuals involved in the case. It highlights the tension between Trump's right to political speech and the need to protect the integrity of the legal process.

Additionally, the article touches on the appeals court's rejection of Trump's legal team's arguments for lifting the gag order entirely, emphasizing the potential danger posed by Trump's public statements and the need for a narrower tailoring of the restriction to protect free speech.

Furthermore, the article explores the broader context of the case, including the intertwining of Trump's criminal cases with his presidential campaign, the involvement of political adversaries as witnesses, and the reinstatement of gag orders in both the federal election case and his civil fraud case in Manhattan.

In summary, the article provides a comprehensive overview of the legal and political intricacies surrounding the federal election case involving Donald J. Trump, shedding light on the complex interplay between constitutional rights, legal proceedings, and the broader political landscape.

Appeals Court Upholds, but Narrows, Gag Order on Trump in Election Case (2024)
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