A US federal appeals court upheld on Friday a gag order against former President Donald Trump imposed by the district judge overseeing his criminal case in Washington DC. The US District Court of Appeals for DC agreed with the district judge that some gag order is needed in the case to ensure the “fair and orderly adjudication of the ongoing criminal proceeding” but held that the gag order was too broad. Under the Friday order, Trump will continue to be prohibited from making any public statements about any witnesses to the case, federal prosecutors, the court staff and their families. Trump will, however, now be able to make public statements about Special Prosecutor Jack Smith, the federal prosecutor overseeing two criminal cases against Trump.
US District Judge Tanya Chutkan first imposed the gag order against Trump on October 16. Under the order, Trump and his counsel were prohibited from making “any public statements…that target (1) the Special Counsel prosecuting this case or his staff; (2) defense counsel or their staff; (3) any of this court’s staff or other supporting personnel; or (4) any reasonably foreseeable witness or the substance of their testimony.” Trump challenged the gag order by appealing to the US Court of Appeals for DC. His challenge was based on three arguments—each of which, the court rejected.
The first argument Trump used against the gag order was to assert that actual harm must have befallen the target of the regulated speech before it can be regulated. However, the court rejected this, stating, “No one is entitled to one free bite at derailing witness testimony or impeding the trial court’s ability to function.” This underscored the court’s attempt to balance the two competing interests in the appeal: Trump’s individual right to free speech and the court’s duty to uphold fair and effective functioning of the criminal trial process.
Trump’s second argument went towards a similar idea. He argued that the gag order effectively serves as a “heckler’s veto,” which prevents an individual from speaking in a public forum because people react violently to their views. The court also dismissed this argument. The court held that Trump’s argument ignored the very real danger and harm presented by Trump’s statements. The court spent a significant amount of time outlining specific instances in which Trump’s attacks against witnesses, prosecutors and court staff involved in the case have resulted in danger to the same individuals. The court emphasized, “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 court also rejected Trump’s third argument, which asserted that he should be afforded greater deference because, as a candidate for the US presidency, his statements about the case amount to political speech. Instead, the court found that Trump’s large platform exacerbates the danger posed by his statements. “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. A trial participant’s engagement in political speech cannot degrade or diminish that essential judicial function,” the court said.
While the court found that some gag order is required in the case against Trump, the court disagreed with the breadth of the order imposed by Chutkan. The court narrowed the order in two regards. The court narrowed Chutkan’s order to include an intent requirement. Now, Trump’s statements are only restricted to the extent that they are made “either with the intent to materially interfere with their work or the knowledge that such interference is likely to result.” The court also narrowed the gag order to exclude Smith.
The court underscored the gravity of their decision, stating:
We do not allow such an order lightly. 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.
The new limited gag order will remain in effect through the criminal trial, which is slated to begin on March 4, 2024.
