A major appeals court on Friday upheld most of the gag order prohibiting former President Donald Trump from making public statements about “foreseeable witnesses” in the federal case that accuses him of conspiring to defraud the U.S. in seeking to overturn the 2020 election results.
A panel on the U.S. Court of Appeals for the District of Columbia narrowed the order from District Judge Tanya S. Chutkan to say that Mr. Trump is still permitted to speak about special counsel Jack Smith. The ex-president frequently attacks Mr. Smith on social media as a Democratic stooge who is out to get him.
The circuit panel, however, said Mr. Trump is barred from making or directing others to make public statements about certain categories of persons, including public statements about known or reasonably foreseeable witnesses concerning their participation in the investigation or criminal proceedings; statements about prosecutors in the case other than Mr. Smith; members of the court and its staff; and the family members of court personnel and staff.
Prosecutors and the court have worried that Mr. Trump‘s sharp words could intimidate potential witnesses or encourage his followers to take action against officers of the legal system.
“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 panel of Obama appointees Patricia Millett and Cornelia Pillard and Biden-nominated Brad Garcia said in the order.
The order says Mr. Trump remains free to criticize the Biden administration, the Department of Justice and Mr. Smith, or make statements that “this prosecution is politically motivated or that he is innocent of the charges against him.”
Judge Chutkan did not prohibit statements targeting herself in the initial gag order against Mr. Trump.
Mr. Trump faces trial on the indictment, led by Mr. Smith, that says his actions following the 2020 election amounted to a criminal conspiracy to defraud U.S. citizens and included an illegitimate scheme to set up false electors.
The former president has railed against a series of gag orders in his criminal and civil cases as unconstitutional attempts to constrain his First Amendment right to free speech even as he campaigns as the GOP front-runner for president.
“The [Chutkan] order is unprecedented and it sets a terrible precedent for future restrictions on core political speech,” Trump lawyer John Sauer told the D.C. Circuit panel in oral arguments.
The Trump campaign, in a short statement reacting to the circuit order, said the Democratic-appointed panel took out a “huge part” of the “overbroad” gag order.
“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,” spokesman Steven Cheung said. “The Biden-led witch hunts against President Trump and the American people will fail.”
Democrats and prosecutors say the rules of the court bind Mr. Trump and should not be allowed to issue statements that could intimidate former Vice President Mike Pence or other potential witnesses, or lead to the type of violence the nation saw during the Capitol attack on Jan. 6, 2021.
In oral arguments, Judge Garcia said there is a “past pattern” that shows when Mr. Trump speaks, threats tend to follow.
“We’re months out from the trial,” the judge said. “This is predictably going to intensify.”
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