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A federal appeals court Friday mostly upheld a partial gag order barring former President Donald Trump from targeting witnesses in his election interference case.
The three-judge panel of the Washington D.C. Circuit Court of Appeals backed Judge Tanya Chutkan’s order barring Trump from making statements about witnesses in the explosive case that is set to go on trial March 4.
“Trump’s public statements pose a significant and imminent threat to the fair and orderly adjudication of the ongoing criminal proceeding,” the unanimous ruling said.
The appeals judges did narrow the ruling by permitting Trump to continue his trademark nasty attacks on special counsel Jack Smith, whom he regularly derides as a “lunatic” and worse on social media.
Trump says the gag order violates his First Amendment rights, a claim most legal analysts disagree with. He has said he will appeal the ruling to the Supreme Court if necessary.
Trump wasted little time trashing the ruling and said he would appeal the matter to the Supreme Court if necessary.
“What is becoming of our First Amendment, what is becoming of our Country?” Trump asked in a post on his social media site.
The judges said they were well aware of the political sensitivity of their ruling, noting that Trump is a presidential candidate and “there is strong public interest in what he has to say.”
But they said no criminal defendant can be allowed to tip the scales of justice by trying to interfere with witnesses.
“He must stand trial in a courtroom under the same procedures governing any other criminal defendant,” the judges ruled. “That is what the rule of law means.”
The panel included appeals court judges Patricia Millet, Bradley Garcia and Cornelia Millard. All three were appointed by Democratic presidents.
The judges mostly backed Chutkan’s reasoning in her order. But it ordered her to rejigger it to give Trump more leeway to mention or even criticize potential witnesses if he doesn’t directly refer to the case or their potential testimony.
“The interest in protecting witnesses from intimidation and harassment is doubtless compelling, but a broad prohibition on speech that is disconnected from an individual’s witness role is not necessary to protect that interest, at least on the current record,” Millet wrote for the panel.
The judges upheld restrictions on Trump’s commenting on court personnel or their families, a prohibition that would bar his attacks on Smith’s wife. But they gave him the green light to deride Smith himself as he sees fit, along with other Department of Justice officials and members of President Biden’s administration.
Chutkan, who was appointed by former President Barack Obama, imposed the order after Trump unloaded on potential witnesses like ex-Vice President Mike Pence and former Chief of Staff Mark Meadows, who has offered some cooperation with Smith’s team.
Prosecutors said the restrictions are necessary to protect the integrity of the case and shield potential witnesses and others involved in the case from harassment and threats inspired by Trump’s incendiary social media posts.
Trump is charged with trying to overturn his loss to President Biden and cling to power, an effort that prosecutors say culminated in the run-up to the riot by his supporters on Jan. 6, 2021.
He faces a trial on Georgia state RICO conspiracy counts for some of the same conduct, along with more than a dozen codefendants.
Trump has separately sought to freeze the case on the grounds that as president he enjoyed blanket immunity.
Chutkan ruled against him but he has appealed that ruling to the same D.C. appeals court and it will likely be decided by the Supreme Court.
Trump hopes to use the legal tactic to delay the case and other criminal trials till after the 2024 election, when he hopes to regain power and kill the prosecutions.