A federal appeals court narrowed an order limiting what former president Donald Trump can say about people involved in the criminal case alleging that he tried to subvert the 2020 election results, saying he cannot talk about witnesses’ involvement or single out other individuals in ways likely to interfere with the case.
“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,” Judge Patricia Millett wrote for the unanimous three-judge panel of the U.S. Court of Appeals for the D.C. Circuit. “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 ruling upholds a ban on Trump speaking about witnesses’ participation in the investigation and likely testimony but allows other attacks on those figures. Commentary on other lawyers involved in the case, as well as court staff and both groups’ family members, are barred “if those 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.” And all statements about special counsel Jack Smith are now allowed.
“Surely he has a thick enough skin,” Judge Cornelia Pillard said of Smith, a former international war crimes prosecutor, during oral argument late last month over the order. She added that using Smith’s name was the “easiest” shorthand to distinguish between the six criminal and civil cases Trump currently faces; the special counsel is handling two of them.
U.S. District Court Judge Tanya S. Chutkan, who is overseeing Trump’s trial, had prohibited him from “targeting” any individuals involved in the case, including likely witnesses, while allowing him to attack the Justice Department, the White House and Biden as biased and corrupt.
The judges said that “targeting” was too broad a prohibition on Trump and could be “chilling speech” unlikely to have any impact on the case. Requiring intent, the appellate court said, would cover “threats of physical harm, stalking, or doxing.” And they said Chutkan need not get an admission from Trump to show his state of mind but can rely on “objective evidence.”
The appellate judges said they were limited in their ruling by the fact that Chutkan justified her order as necessary only to avoid influence on or harassment of participants in the trial. Should Chutkan issue a new gag order citing a need to avoid prejudicing potential jurors through misleading takes on the evidence, the appeals court could rule differently. But during oral argument Pillard suggested that might be a lost cause, saying “it’s hard to see how this … order is going to succeed in preventing a trial in the court of public opinion.”
Given how central this prosecution and Trump’s actions after the 2020 election are in the presidential campaign, the judges said it was too restrictive to limit Trump to “anodyne” statements. Trump should be able push back more forcefully, the judges said, including by calling a potential witness a “liar” or Smith a “Trump hater.” In a debate, Millett said during oral argument, “it would be really hard, when everyone else is going at you full-bore” for Trump to be “Miss Manners” and stick to what his attorneys have approved.
The only likely witness who could have appeared on a debate stage with Trump, former vice president Mike Pence, has dropped out of the presidential race. But Millett said Trump also needed leeway to respond to jabs from other candidates referencing the criminal case, as well as Trump administration officials and likely witnesses who are now public critics of the former president.
But the judges rejected Trump’s proposal to postpone the trial until after the election to avoid conflict between the gag order and his campaign speech. “The general election is almost a year away, and will long postdate the trial in this case,” Millett wrote; Trump is trying to delay the trial scheduled for March, in part with another appeal to the D.C. Circuit filed this week.
And the judges upheld the gag on any commentary specifically about how witnesses are expected to testify at trial, saying Trump has a “unique megaphone … amplified by social media” which raises the risk of “altering or swaying witnesses’ participation in the trial or the content of their testimony.” There is a “predictable torrent of threats of retribution and violence … when Mr. Trump speaks out forcefully against individuals in connection with this case and the 2020 election aftermath on which the indictment focuses,” Millet wrote.
So Trump could call William P. Barr a “liar” when responding to the former attorney general’s assessment that Trump’s “verbal skills are limited,” but he would be barred from saying the same thing if Barr was discussing events on or around Jan. 6 described in Trump’s indictment.
The opinion acknowledges that Chutkan herself and a prosecutor in the special counsel’s office have received threatening communications from Trump supporters and said that with her “broad authority to manage and conduct this complex and high-profile trial,” Chutkan may decide that “additional restrictions are needed on speech about counsel or about staff as the trial date draws nearer or circumstances change.”
Trump campaign spokesman Steven Cheung celebrated the ruling as confirmation that “a huge part of Judge Chutkan’s extraordinarily overbroad gag order was unconstitutional.” He emphasized that all members of the panel are Democratic appointees: Pillard and Millet were nominated by President Barack Obama and Brad Garcia by President Biden. Their ruling could be appealed to the full U.S. Court of Appeals for the D.C. Circuit or the U.S. Supreme Court, which has never weighed in on the constitutionality of gag orders against any criminal defendant. No other appeals court has dealt with a criminal defendant who is simultaneously running for president and denouncing his prosecution as political in campaign speeches and court filings.
In Trump’s ongoing civil fraud trial in New York, a state court judge imposed a gag order after Trump disparaged a clerk on social media. Prosecutors in the D.C. federal case said that after Trump’s post there was a “deluge of the court’s chambers phone and the law clerk’s personal cellphone, personal emails and social media accounts with hundreds of threatening, harassing, disparaging and anti-Semitic messages.” An officer in charge of public safety in New York courts wrote that the “daily … credible” threats require his team to “constantly reassess and evaluate what security protections to put in place to ensure the safety of the judge and those around him.”
That gag order was upheld on appeal last week.