Appeals court largely upholds Trump’s federal gag order

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A federal appeals court has largely upheld a gag order on Donald Trump, concluding that Trump’s rhetoric poses “real-time, real-world consequences” that threaten the integrity of his upcoming criminal trial over his attempts to subvert the 2020 presidential election.

The D.C. Circuit Court of Appeals ruled Friday that Trump’s complaints about free speech and his presidential candidacy ring hollow when juxtaposed with the “imminent” threats his invective has posed to witnesses and the court proceedings themselves.

“The court had a duty to act proactively to prevent the creation of an atmosphere of fear or intimidation aimed at preventing trial participants and staff from performing their functions within the trial process,” Judge Patricia Millett wrote for the unanimous panel of three judges, all of whom are Democratic appointees.

The ruling reinstates restrictions, imposed in October by U.S. District Court Judge Tanya Chutkan but suspended amid the appeal, on Trump’s ability to attack key witnesses in the case against him. Trump is also barred from attacking prosecutors in the case — other than special counsel Jack Smith — and courthouse staff, if the statements are deemed to be an effort to interfere in the proceedings.

The provisions, however, represent a notable narrowing of Chutkan’s original gag order, which the appeals court said “sweeps too broadly.” The panel ruled that Trump remains entitled to criticize various figures who played a role in the 2020 election saga as long as he does not zero in on their potential testimony at the trial, scheduled to begin March 4.

The ruling is the second time in recent days that appellate courts have upheld gag orders against Trump: Last week, a New York appeals court reinstated a more limited gag in his New York civil fraud case. The D.C. Circuit panel, however, is the first appellate court to provide extensive justification for restricting the speech of the likely GOP nominee for president.

Shortly after the D.C. Circuit ruling, Trump said on social media that he will appeal. He can appeal either to the full bench of the appeals court or to the Supreme Court. The outcome of that fight could bear heavily on the 2024 presidential campaign, where Trump has attempted to make his defense against the criminal cases a centerpiece of his message.

“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,” said Trump spokesperson Steven Cheung, noting that the judges on the panel are all Democratic appointees. In addition to Millett, an Obama appointee, the panel included Obama appointee Cornelia Pillard and Biden appointee Bradley Garcia.

A spokesperson for the special counsel’s office declined to comment.

Notably, the D.C. Circuit panel took aim at some of Trump’s most explosive arguments and campaign trail talking points. For example, the judges rejected Trump’s argument that courts should simply postpone his trial until after the election in order to avoid the First Amendment issues raised by the gag order. The panel concluded that delaying the trial would “compound” threats to the process rather than alleviate them.

“Postponing trial would incentivize criminal defendants to engage in harmful speech as a means of delaying their prosecution,” Millett wrote. “A criminal defendant cannot use significantly and imminently harmful speech to override the district court’s control and management of the trial schedule.”

Similarly, the court dismissed Trump’s concerns that the gag order would stifle his political speech at the height of his presidential candidacy.

“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 panel concluded. “A trial participant’s engagement in political speech cannot degrade or diminish that essential judicial function. … He cannot evade that legitimate limitation by dressing up messages to witnesses in political-speech garb."

The court took particular issue with Trump’s contention that his social media messages mentioning potential trial witnesses — like former chief of staff Mark Meadows and retired Gen. Mark Milley — were political speech protected by the First Amendment.

“The district court had the authority to prevent Mr. Trump from laundering communications concerning witnesses … through social media postings or other public comments,” the panel concluded.

The panel also found that individuals who are the targets of Trump’s vitriol often suffer threats and harassment from others. The court cited numerous examples of witnesses who have complained of fear and danger after Trump targeted them with comments or social media posts.

“It is the court’s duty and authority to prevent speech by trial participants, including the defendant, when the record shows that their words have an ‘extraordinary power to undermine or destroy the efficacy of the criminal justice system,’” Millett wrote, quoting a 1991 Supreme Court case detailing the government’s right to regulate speech by attorneys.

The judges cited Trump’s targeting of a judge and his law clerk in New York, where his business empire is in the midst of a civil trial alleging fraudulent practices — attacks that resulted in significant threats. They also cited threats faced by two Georgia election workers falsely accused by Trump and other allies of manipulating ballots in 2020.

“Mr. Trump himself recognizes the power of his words and their effect on his audience, agreeing that his supporters ‘listen to [him] like no one else,’” the judges noted.

The panel rejected arguments from Trump’s lawyers that reining in his speech because of how some of his followers may react to it amounted to a “heckler’s veto” that courts have traditionally said isn’t a good enough reason to restrict First Amendment rights.

“Within a judicial proceeding, a trial court’s duty to protect the functioning of the criminal trial process is not cabined by the incitement doctrine,” Millett wrote.

While the appeals court pared back some of the limits Chutkan put on Trump’s public statements about court staff and faulted her for vague language in her initial order, Millett said Chutkan has the power to rein in speech by trial participants in order to maintain the integrity of the process.

“Just as a court is duty-bound to prevent a trial from devolving into a carnival … so too can it prevent trial participants and staff from having to operate under siege,” Millett wrote.