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Donald Trump can still be restricted in what he says witnesses as well as lawyers and court staff, and their families, in his federal election conspiracy case, an appellate court ruled on Friday.
The three-judge panel largely upheld Judge Tanya Chutkan’s gag order in the proceedings, with the exception that the restrictions do not apply to Special Counsel Jack Smith, a frequent Trump target who he has labeled “deranged.”
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The judges also set parameters for the type of restrictions on Trump’s comments about attorneys and court staffers, writing that it applied in cases where his statements “are 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.”
Trump’s attorneys argued that the gag order, imposed by Chutkan in October, was an unprecedented restriction on the speech of a presidential candidate, violating his First Amendment rights and past court rulings that have set a high bar when it comes to banning political speech.
In the opinion, authored by Judge Patricia Millett, the judges wrote that “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 they also found fault with Chutkan’s restrictions, writing that it “sweeps too broadly.”
“It captures some constitutionally protected speech that lacks the features or content that would
trench upon the court’s proper functioning or ability to administer justice. Under the Order, Mr. Trump could not, for example, say that a former government official and potential witness is a ‘liar,’ or that the Special Counsel is a ‘Trump hater.'”
They added, “Mr. Trump has a First Amendment interest in publicly debating those individuals’ commentaries in a way that is independent of and disassociated from any role they might have in the trial. Yet the Order would proscribe such speech because it would speak about someone who is a reasonably foreseeable witness, even if Mr. Trump’s speech would have nothing to do with their witness role or the possible content of any testimony.”
The former president’s legal team argued that Chutkan’s restrictions would prevent Trump from saying much of anything against a number of potential witnesses, including Vice President Mike Pence and former Attorney General William Barr, who already had high-profile roles in the public sphere.
The judges found it necessary to set narrower parameters for the type of speech allowed. “The interest in protecting witnesses from intimidation and harassment is doubtless compelling, but a broad prohibition on speech that is disconnected from an individual’s witness role is not necessary to protect that interest, at least on the current record,” they wrote. “Indeed, public exchanges of views with a reasonably foreseeable witness about the contents of his forthcoming book are unlikely to intimidate that witness or other potential witnesses weighing whether to come forward or to testify truthfully.”
When it comes to witnesses, the judges wrote that the gag order should be narrowed to comments about those figures who will actually testify and those who are “reasonably” foreseen as being called to the stand. In those instances, the gag order would apply to comments “concerning their potential participation in the investigation or in this criminal proceeding.”
Trump was never restricted in what he could say about the current administration and the Department of Justice, “as well as statements that this prosecution is politically motivated or that he is innocent of the charges against him.”
The judges identified the types of statements that would be allowed and ones that would be problematic.
In a video posted to his social media account, Trump said, “Why does Fox News constantly put on slow-thinking and lethargic Bill Barr, who didn’t have the courage or stamina to fight the radical left lunatics while he was the Attorney General of the United States, and who even more importantly refused to fight election fraud, of which there was much?”
The judges said that the comments “do not concern any role” Barr may have as a witness in the criminal proceeding.
They did, however, find a different Trump comment problematic, one that came after news broke that his former chief of staff, Mark Meadows, may be cooperating with the special counsel. Trump asked on social media whether Meadows was a “weakling and coward” who would “make up some really horrible ‘STUFF’” about Mr. Trump in exchange for “IMMUNITY against Prosecution (PERSECUTION!) by Deranged Prosecutor, Jack Smith.”
“That statement, considering both its timing and its content, concerns Meadows’s potential cooperation with the prosecution and his potential testimony against Mr. Trump and so is properly proscribed,” the judges wrote.
“There no doubt will be some close cases in which it will be difficult to determine whether a statement concerns a foreseeable witness’s potential participation in the investigation or in this criminal proceeding. But resolving such factual disputes falls well within the district court’s wheelhouse,” the judges wrote.
Trump has plead not guilty to the federal criminal charges, alleging that he conspired to remain in office following the 2020 presidential election. The trial in the case is scheduled to begin in March.
Trump also is challenging a gag order in a New York civil fraud trial, where a judge has restricted him or his attorneys from commenting on his staff. Trump has been fined a total of $15,000 for violating the order.
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