Court leans toward keeping Trump’s gag order in D.C., but with modifications
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A federal appeals court on Monday in Washington, D.C., seemed to lean toward reinstating former President Donald Trump's previous gag order with modifications.
The original partial gag order was imposed by Judge Tanya S. Chutkan, who is overseeing the federal case on allegations Trump plotted to overturn the 2020 election.
The three-member panel of judges overseeing the appeal indicated they might modify the conditions of the order or possibly limit the range of individuals affected. This could include allowing Trump to criticize Jack Smith, the special counsel in charge of the federal cases against him.
The panel members included Judge Patricia Millett, Judge Cornelia Pillard and Judge Bradley Garcia. Democratic presidents appointed all three judges on the panel for the case. Millett and Pillard were nominated by former President Barack Obama, and Obama nominated Chutkan for the district court. President Joe Biden nominated Garcia.
Chutkan’s gag order guidelines
Chutkan “imposed the gag order in October in (the) Federal District Court in Washington. It forbade Mr. Trump to publicly malign any prosecutors, potential witnesses or court employees involved in the case,” per The New York Times.
“But Judge Chutkan explicitly permitted Mr. Trump to criticize the Justice Department, President Biden and herself. She also allowed him to maintain that the prosecution itself was a partisan retaliation against him,” the Times added.
The original gag order was frozen when the appeals court agreed to take the case. Other limits to the gag order “restricts Trump’s ability to directly attack Smith, members of his team, court staff or potential trial witnesses. He is allowed to criticize the Justice Department, proclaim his innocence (and) can say that the case is ‘politically motivated,’” according to CNN.
Monday’s hearing takeaways
In the Monday hearing, which lasted over two hours, the three judges showed some doubt regarding the claim from Trump’s attorney that the gag order violated the former president’s First Amendment rights.
The panel of judges also suggested they might modify the order by permitting Trump to openly criticize special counsel Jack Smith, who is overseeing the federal prosecutions against the former president, yet continue to prohibit criticism of witnesses and court staff, the Wall Street Journal noted.
“It can’t be that he can’t mention Mr. Smith,” because most Americans have heard about the case in the context that it was initiated by Smith’s team.” According to CNN, “that has become the shorthand,” Pillard said in the hearing.
“Surely he has a thick enough skin,” Pillard added, referring to special counsel Smith.
Millet added that Trump should be able to defend himself in a potential GOP debate instead of having to “speak Miss Manners while everyone else is throwing targets.”
Related
The judges discussed potential situations that might emerge in the coming months while deliberating on how to strike a balance between an order safeguarding Trump’s First Amendment rights and the necessity to preserve the integrity of the criminal trial process.
“There’s a balance that has to be undertaken here, and it’s a very difficult balance in this context,” Millett told Cecil VanDevender, a lawyer with Smith’s office, per The Associated Press. “But we have to use a careful scalpel here and not step into really sort of skewing the political arena, don’t we?”
VanDevender agreed but noted that he believed the original gag order’s requirements were appropriate. Trump’s legal team has indicated their intent to challenge any such limitations all the way to the Supreme Court.
The court did not issue an immediate decision, but its inquiries suggested the potential to limit the scope of the gag order.
This would define the limits of what Trump, in his dual roles as a criminal defendant and a candidate for the 2024 Republican presidential nomination, may or may not express as the trial date approaches.
The dispute regarding the federal gag order is unfolding at the same time that a state appeals court in New York is reviewing the validity of two similar gag orders placed on Trump by Justice Arthur F. Engoron, who is overseeing the civil fraud trial in Manhattan.
“Those orders — which are also currently paused — would bar Mr. Trump or any of his lawyers from targeting Justice Engoron’s law clerk,” according to The New York Times. “The clerk has suffered repeated attacks by the former president and his allies, who have accused her of being a Democratic partisan.”
