Trump gag order is partially upheld in Jan. 6 case

By Carrie Johnson (NPR)
Dec. 8, 2023 8:38 p.m.
Former President Donald Trump departs for a break during a civil fraud trial in New York City on Thursday.

Former President Donald Trump departs for a break during a civil fraud trial in New York City on Thursday.

Timothy A. Clary / AFP via Getty Images

A federal appeals court panel has preserved most of a gag order on former President Donald Trump in his federal election interference case in Washington, D.C.


The three-judge panel concluded some of Trump's remarks "pose a significant and imminent threat to the orderly adjudication" of justice but said the lower court judge's gag order swept in too much speech protected by the First Amendment.

The appeals court ruling would allow Trump to make public statements about the special counsel in the case, Jack Smith, but not other prosecutors, court staffers or their family members — if those remarks are designed to interfere with lawyers or court staff's work on the four-count felony case against Trump.

Trump, the GOP frontrunner for the next presidential nomination, had argued the gag order amounted to an unconstitutional prior restraint--violating not only his free speech rights but also those of millions of voters in the 2024 election.

The appeals court panel, led by Judge Patricia Millett, said that like other criminal defendants, Trump does not enjoy unfettered rights to speak. Her opinion Friday afternoon said Trump's lawyers had "miscast" Supreme Court precedent and offered no meaningful limits on what such a defendant could say outside of already clear violations of federal law.

Special counsel prosecutors had argued Trump repeatedly threatened likely witnesses against him in criminal proceedings, from former Vice President Mike Pence and chief of staff Mark Meadows to the former chairman of the Joint Chiefs of Staff, Mark Milley.


"The record also shows that former President Trump's words have real world consequences," the appeals court ruling said, citing "a torrent of threats and intimidation" directed at Trump critics, election officials, and judges in other proceedings.

The D.C. Circuit ruling preserves restrictions on Trump and other parties in the case from disparaging likely witnesses in the election interference case because of their expected testimony. It also bars Trump and others from making such remarks about court staffers and lower-level prosecutors involved in next year's trial.

"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," the appeals court wrote.

The court said U.S. District Judge Tanya Chutkan, who will oversee the trial, had a duty to act before serious harm occurred. But it said her order swept too broadly when it seemed to bar Trump from calling former officials who once worked for him "liars" or criticizing their job performance as he campaigned for the White House.

Considering Trump's argument that his ongoing political campaign and his criminal defense strategy are deeply intertwined, the court wrote, "the existence of a political campaign or political speech does not alter the court's historical commitment or obligation to ensure the fair administration of justice in criminal cases."

The appeals court said other alternatives--moving the trial outside of D.C. or pushing it past election day 2024--wouldn't work or would prove too burdensome on the justice system.

"Mr. Trump is a former president and a current candidate for the presidency, and there is a strong public interest in what he has to say," the court wrote. "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."

Steven Cheung, a spokesman for Trump, in a statement said the court "determined that a huge part of Judge Chutkan's extraordinarily overbroad gag order was unconstitutional."

A spokesman for special counsel Smith declined to comment on the ruling "beyond our representations before the court on this issue."

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