Appeals court to consider Trump gag order in D.C. 2020 election case

Washington — Legal teams for special counsel Jack Smith and former President Donald Trump are set to face off in a high-stakes appeals court hearing on Monday over a federal judge’s ruling limiting certain aspects of Trump’s speech in relation to this case, ahead of his criminal trial in Washington, D.C. 

Trump asked the U.S. Court of Appeals for the D.C. Circuit to overturn or pause District Judge Tanya Chutkan’s October limited gag order — which is currently not in effect — that would bar him from publicly targeting individual prosecutors, court staff, or potential witnesses tied to the 2020 election-related federal prosecution. The special counsel had urged Chutkan to impose even broader restrictions on the former president’s pretrial speech, alleging his public comments threatened the proper administration of the judicial process and might inspire violence from supporters.

Her order did not go as far as prosecutors had requested, but Chutkan said she was treating the former president like any other defendant by preventing him from publicly speaking out against those who might testify against him at trial. 

Trump’s public targeting of the prosecution — he has called Smith “deranged” and weighed in on reports that former White House chief of staff Mark Meadows cooperated with the probe — and prosecutors’ efforts to curtail him have injected partisan politics into what are at-times mundane pretrial scuffles over a defendant’s freedoms. 

“This is not about whether I like the language Mr. Trump uses,” Chutkan said in an October hearing. “This is about language that presents a danger to the administration of justice.” She said that part of her role is to protect the integrity of the judicial process, and freedom-of-speech protections “yield” when those principles are threatened. 

The appeals court temporarily put the gag order on hold ahead of Monday’s hearing at Trump’s request, so it is currently not in effect.

Chutkan’s order, Trump’s attorneys argued in court filings, was “muzzling President Trump’s core political speech during an historic Presidential campaign” and was “viewpoint based.” 

The prosecutors and potential witnesses whom Trump was barred from publicly targeting are high-level government officials, they said, and are thus linked to Trump’s political campaign. Any restriction on Trump’s speech, his defense attorneys argue, limits his right to campaign freely. 

“The district court cannot silence President Trump based solely on the anticipated reaction of his audiences. The district court lacks the authority to muzzle the core political speech of the leading candidate for President at the height of his re-election campaign,” Trump’s attorneys argued in court filings. “President Trump is entitled to proclaim, and the American public is entitled to hear, his core political messages. The Gag Order should be immediately reversed.”

But Smith’s team has increasingly worked to tie Trump’s public rhetoric to threats of violence, alleging his supporters’ reactions to his criticisms could affect the way the trial — currently set for March 2024 — proceeds. 

Trump, the special counsel alleged, is aware that his language might inspire others to act and “seeks to use this well-known dynamic to his advantage.” Citing threats to Judge Chutkan herself, prosecutors write that the pattern “continued unabated as this case and other unrelated cases involving the defendant have progressed.” 

Rebutting Trump’s claims of First Amendment protection, prosecutors told the appeals court earlier this month, “The defendant does not need to explicitly incite threats or violence in his public statements, because he well knows that, by publicly targeting perceived adversaries with inflammatory language, he can maintain a patina of plausible deniability while ensuring the desired results.” 

Smith’s team argued the former president’s current campaign to win the office again is not a sufficient reason to grant him extensive pretrial privileges. 

In a filing Friday, Trump’s team countered, “The First Amendment does not permit the district court to micromanage President Trump’s core political speech” and said Smith’s argument in favor of the order was based on, “hearsay media reports as a substitute for evidence.” 

Trump’s motion to stay the gag order received support last week from more than a dozen Republican state attorneys general who echoed his argument that the restrictions on his speech unduly affect voters in primary states. 

Spearheaded by Iowa’s attorney general, the group – at least six of whom have endorsed Trump – wrote in an amicus brief, “Our citizens have an interest in hearing from major political candidates in that election. The Order threatens the States’ interests by infringing on President Trump’s free speech rights.” 

Trump has also found an unlikely ally in the American Civil Liberties Union, which brought scores of legal challenges to Trump’s policies while he was in office. In the friend-of-the-court brief the ACLU sought to submit to the district court — the request to file the brief was ultimately denied — the organization said that Chutkan’s order is unconstitutionally vague and impermissibly broad.

The panel considering Trump’s request comprises Judges Patricia Millett and Cornelia Pillard — both Obama appointees — and Bradley Garcia, a Biden appointee. 

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