Gag order in federal Trump election interference case upheld, but narrowed

 December 10, 2023

In a development characterized by the Trump campaign as something of a victory, an appeals court last week upheld – but notably narrowed – a prior gag order placed on the former president in the federal 2020 election interference case brought by special counsel Jack Smith, as the Washington Post reports.

The ruling is the latest development in an ongoing legal back-and-forth that commenced when presiding Judge Tanya Chutkan issued an order blocking former President Donald Trump from “targeting” individuals – including witnesses – involved in the case.

Gag order upheld, though narrowed

Writing the unanimous opinion of the three-judge panel, Judge Patricia Millet began by noting, “The First Amendment unquestionably affords political speech robust protection.”

She went on, “But there is another fundamental constitutional interest at stake here. 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.”

To that end, the panel upheld Chutkan's previous ban on Trump's speech regarding potential witnesses in the case and the testimony they might offer, however, it eliminated the portion of the prior order with regard to Smith.

As to Trump's statements on lawyers in the case, court staff, and the family members of those groups, the panel barred them if they are to be “made with the intent to materially interfere with, or to cause others to materially interfere with, counsel's or staff's work in this criminal case, or with the knowledge that such interference is highly likely to result.”

DOJ, Biden, Smith remain fair game

As CBS News explains, despite the limitations that were upheld by the appeals panel, Trump has retained the ability to voice criticisms of the Biden administration, the Department of Justice, as well as Smith himself.

Trump remains free to argue to the public that the prosecution by the federal government is politically motivated and he may still proclaim his innocence while on the campaign trail and elsewhere.

That outcome reflects concerns raised during oral arguments heard on the issue when Millet touched on the unfairness Trump -- as the GOP primary frontrunner -- would likely face from other candidates if unable to speak about criminal charges he is facing.

“He has to speak Miss Manners while everyone else is throwing targets at him? It would be really hard, when everyone else is going at you full bore, and you know, your attorneys will have to have scripted little things that you can't say,” Millet observed.

Trump camp reacts

In the wake of the ruling, Trump campaign spokesperson Steven Cheung opined that the appeals panel “determined that a huge part of Judge Chutkan's extraordinarily overbroad gag order was unconstitutional.”

“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,” Cheung added.

He went on, “The Biden-led witch hunts against President Trump and the American people will fail.”

The former president is now free to appeal to the full D.C. Circuit or apply to the U.S. Supreme Court for emergency relief, and while Trump took to his Truth Social platform and pledged an appeal of some sort, it remains to be seen which route he will ultimately take.

" A free people [claim] their rights, as derived from the laws of nature."
Thomas Jefferson
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