Trump legal news brief: Appeals court upholds Trump gag order issued by Chutkan — but allows him to criticize Jack Smith

A Washington court of appeals mostly upholds a gag order issued in the federal election interference case by Judge Tanya Chutkan, but rules that it was too broadly construed, allowing former President Donald Trump to publicly criticize special counsel Jack Smith. Pro-Trump lawyer Kenneth Chesebro, who has already pleaded guilty to a felony in Georgia, is reportedly cooperating with prosecutors in four states investigating Republicans who posed as electors in the 2020 presidential election. Here’s the latest from the legal cases facing the man who hopes to win reelection to the White House in 2024.

Jan. 6 election interference

Appeals court upholds, but narrows Trump gag order

Key players: DC Circuit Court of Appeals, Judge Tanya Chutkan, special counsel Jack Smith, Trump lawyer John Lauro

• On Friday, a Washington appeals court upheld Chutkan’s decision to issue a gag order designed to keep Trump from attacking possible witnesses in the case and courtroom staff, the Associated Press reported.

• But the three-judge panel also found that Chutkan’s order was overly broad and ruled that Trump could be allowed to criticize Smith.

• "We agree with the district court that some aspects of Mr. Trump’s public statements pose a significant and imminent threat to the fair and orderly adjudication of the ongoing criminal proceeding, warranting a speech-constraining protective order. The district court’s order, however, covers more protected speech than is necessary. For that reason, we affirm the district court’s order in part and vacate it in part," the opinion stated.

• Lauro had argued that the gag order violated Trump’s free speech rights. Prosecutors countered that Trump’s attacks on the court and on witnesses represented a public safety risk and threatened the prospects for conducting a fair trial.

Why it matters: Appeals courts have now sided with judges in two separate cases that gag orders can be used to police Trump’s speech.

Chesebro cooperating in 4 state investigations into fake electors scheme

Key players: Pro-Trump lawyer Kenneth Chesebro, Wisconsin Attorney General Josh Kaul, Michigan Attorney General Dana Nessel, Fulton County, Ga., District Attorney Fani Willis, special counsel Jack Smith

• Chesebro, who pleaded guilty to a felony in Willis's election interference case in Georgia, has been cooperating with investigations in Wisconsin, Michigan, Arizona and Nevada looking into the fake electors scheme that sought to keep Trump in power, CNN reported.

• Considered the architect of the plan for states to simply submit an alternate slate of electors declaring Trump had won in crucial battleground states in 2020, Chesebro has entered into proffer agreements in multiple states, according to CNN, which offer him partial protection from being prosecuted.

• Chesebro testified before a grand jury in Nevada, which on Wednesday issued indictments of six fake electors. He is also scheduled to sit for an interview with prosecutors in Arizona who are continuing to investigate fake electors in that state.

• In addition, Chesebro is known to have cooperated with Kaul’s investigation in Wisconsin. On Wednesday, 10 Wisconsin Republicans who posed as legitimate electors in 2020 and falsely attested that Trump had defeated Biden there, settled a lawsuit and admitted Biden was the winner.

• In Michigan, Nessel has charged 16 Republicans who posed as electors in 2020. One of those charged has reached a cooperation deal with prosecutors.

Why it matters: Though not named, Chesebro has been identified as an unindicted co-conspirator in Smith’s federal election interference case against Trump. The fake elector plot is dangerous to Trump because it threatens to expose the specific coordination between the White House and state-level Republicans in the scheme to keep Trump in power.

Recommended reading

• The Independent: Ex-police chief charged over Jan. 6 riot spouts conspiracies as he is jailed for 11 years

• The Hill: What to watch in the battle over Trump’s trial calendar

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Thursday, Dec. 7

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Lawyers for former President Donald Trump file an appeal of rulings by Judge Tanya Chutkan that stated Trump was not protected from prosecution for his attempts to overturn the results of the 2020 election. Until that appeal is decided upon by the D.C. Circuit Court of Appeals, they argue, the proceedings in the federal trial must not be allowed to go forward. In New York, meanwhile, Trump returns to the courtroom to listen to testimony from defense witnesses and to bash the judge and New York Attorney General Letitia James. Here are the latest legal developments surrounding the man who hopes to be elected to a second White House term in 2024.

Jan. 6 election interference

Trump’s lawyers file appeal of judge’s rulings and seek immediate stay of trial

Key players: Judge Tanya Chutkan, Trump lawyers John Lauro and Todd Blanche, special counsel Jack Smith, D.C. Circuit Court of Appeals

• On Thursday, Trump’s lawyers filed an appeal with the D.C. Court of Appeals targeting two of Chutkan’s recent rulings. Last week, Chutkan ruled that neither presidential immunity nor the fact that Trump was acquitted by the U.S. Senate for his actions on Jan. 6, 2021, shields him from prosecution, Politico reported.

• Citing that appeal, Trump’s lawyers then demanded that Chutkan stay the proceedings in Smith’s federal election interference case.

• “The filing of President Trump’s notice of appeal has deprived this Court of jurisdiction over this case in its entirety pending resolution of the appeal. Therefore, a stay of all further proceedings is mandatory and automatic,” Lauro and Blanche wrote in a filing to Chutkan.

• If Chutkan does not grant a stay, Trump’s lawyers say they will ask the court of appeals to issue one.

• The trial is scheduled to begin on March 4.

Why it matters: Trump has consistently sought to delay the start of the criminal and civil trials targeting him until after the 2024 presidential election. Should he win reelection, Trump could attempt to instruct a new attorney general to simply dismiss the charges against him, or he could seek to pardon himself.

New York financial fraud

Trump returns to courtroom

Key players: New York University accounting professor Eli Bartov, New York Attorney General Letitia James, Judge Arthur Engoron

• Just days before he is scheduled to return to the witness stand to testify in his own defense, on Thursday Trump arrived back in the Manhattan courtroom where James’s $250 million civil lawsuit is being decided, CNN reported.

• “This whole case is a fraud. What they've done is they've weaponized justice,” Trump told members of the media before he entered the courtroom.

• Inside, he listened as Bartov asserted his view that “there was no justification” for James’s claims that Trump committed fraud by inflating the value of his real estate portfolio.

• “My main finding is that there is no evidence whatsoever for any accounting fraud,” Bartov testified.

• Though acknowledging that Trump’s financial statements contained errors such as the overinflation of the value of Trump’s Manhattan penthouse apartment, Bartov claimed that “errors like that are not unusual.”

• James is suing Trump, his adult sons and their family business, alleging that they knowingly participated in fraud by inflating the value of their real estate empire to obtain favorable bank and insurance rates.

• Engoron has already sided with James, ruling that the defendants are liable for fraud.

• Trump is scheduled to take the stand on Monday as the final witness for the defense.

Why it matters: Whatever Engoron rules in terms of assigning specific liability and penalties, Trump’s lawyers will certainly file an appeal. On Thursday, a New York appeals court paused Engoron’s cancellation of Trump’s business certificates until the trial and any appeals have concluded, meaning the defendants are, for now, free to continue doing business there.

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Wednesday, Dec. 6

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Ten Wisconsin Republicans who signed fraudulent paperwork claiming former President Donald Trump defeated Joe Biden in the 2020 election in the state settle a lawsuit and admit that Biden was the actual winner. Federal prosecutors on Jack Smith’s team submit a filing to Judge Tanya Chutkan asking to allow them to submit evidence showing that Trump has a pattern of attempting to discredit the results of U.S. presidential elections. Here are the latest legal developments in the cases facing the man who hopes to return to the White House.

Jan. 6 election interference

Wisconsin Republicans who posed as electors settle lawsuit and admit Biden beat Trump

Key players: former chairman of the Wisconsin Republican Party Andrew Hitt, pro-Trump lawyer Kenneth Chesebro, special counsel Jack Smith

• Ten Wisconsin Republicans who signed fraudulent paperwork attesting that Trump defeated Biden in the 2020 presidential election agreed Wednesday to settle a lawsuit brought by rightful electors in the state, the Associated Press reported.

• As part of the settlement, the fake electors agreed to retract their paperwork, admit that Biden won the election in Wisconsin and agree not to serve as electors in any election in which Trump is a candidate.

• In a statement about the settlement, Hitt said he and the other so-called electors “were tricked and misled.” He added: “I will not be supporting Trump in 2024.”

• Settlement documents also revealed how one of the Republicans referred to the plot as a “possible steal,” but agreed to go along with it because he feared retribution from Trump’s supporters if he did not.

• Criminal charges were also filed Wednesday against fake electors in Nevada who claimed Trump had won in that state in 2020.

• “We cannot allow attacks on democracy to go unchallenged," Nevada Attorney General Aaron Ford said in a statement about the felony counts.

• Investigations are ongoing in two more battleground states that could lead to others being charged.

• Despite the settlement in Wisconsin, two Biden electors there continue to pursue their lawsuit against two pro-Trump lawyers who helped the 10 fake electors in the state. One of those lawyers is Chesebro, the alleged mastermind of the alternate electors scheme who pleaded guilty in Fulton County, Ga., to conspiracy to commit filing false documents, a felony.

Why it matters: In the case brought by Smith, Trump’s lawyers plan to relitigate their discredited claims that the 2020 election was “rigged” and therefore justified the use of alternate slates of electors. But Chesebro’s guilty plea in addition to the settlement by the bogus electors will give Smith and his team ample evidence to use against the former president.

Prosecutors seek to tell jury of Trump’s repeated efforts to discredit U.S. elections

Key players: Senior assistant special counsel Molly Gaston, special counsel Jack Smith, Judge Tanya Chutkan, former President Barack Obama, former Republican presidential nominee Mitt Romney, former Democratic presidential nominee Hillary Clinton

• In a nine-page filing Wednesday, prosecutors asked Chutkan to allow them to introduce evidence to a jury about what they say is Trump’s pattern of trying to sow doubts about U.S. presidential elections, Politico reported.

• Since the evidence Smith’s team is seeking to submit in court isn’t part of the specific charges made in the criminal indictment, prosecutors must be granted approval by the judge for its inclusion.

• In the 2012 presidential election, when Obama defeated Romney, Trump asserted without evidence that voting machines were being manipulated and that the outcome was compromised. Prior to his victory in 2016 over Clinton, Trump assured the country that the election would be marred by cheating. Prosecutors are seeking to admit both of those instances as evidence.

• “They demonstrate the defendant’s common plan of falsely blaming fraud for election results he does not like,” Gaston wrote in her filing.

Why it matters: Smith’s team wants to reinforce their argument that Trump’s efforts to discredit the 2020 election results was not a one-off event. Trump’s lawyers, on the other hand, will press their view that he was justified in challenging the outcome.

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Tuesday, Dec. 5

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After Trevian Kutti, former publicist to Kanye West and R. Kelly, posts an Instagram Live video that appears to threaten Georgia election worker Ruby Freeman, Fulton County prosecutors consider asking Judge Scott McAfee to revoke her bond. In Washington, meanwhile, forms are sent out to prospective jurors for what is believed to be the federal election interference case. The forms indicate that, if the case proceeds on schedule, a verdict in the trial of former President Donald Trump could be rendered ahead of the Republican National Convention this summer. Here are the latest legal developments for the man looking to return to the White House.

Georgia election interference

Prosecutors consider asking judge to revoke bond for Trevian Kutti

Key players: publicist Trevian Kutti, Fulton County District Attorney Fani Willis, election worker Ruby Freeman, former Black Voices for Trump founder Harrison Floyd, Judge Scott McAfee

• Willis’s team is considering asking McAfee to revoke Kutti’s bond after she was found to have posted an Instagram Live video that appeared to threaten Freeman, CNN reported, citing a source familiar with the matter.

• “There’s a woman sitting somewhere who knows this whole thing is a lie, who knows I never did anything to her, who knows I never … who knows she begged me for help. There’s a woman sitting somewhere who knows that I’m going to f*** her whole life up when this is done,” Kutti wrote.

• One of 19 people indicted by Willis in the plot to overturn the results of the 2020 presidential election in Georgia, Kutti has been charged with three felonies stemming from her efforts to pressure Freeman after Trump falsely accused Freeman of helping to rig the election against him.

• Last month, Willis asked McAfee to jail Floyd over tweets he continued to make that mentioned possible witnesses in the case. McAfee refused, but issued stricter limits on his speech than had been in place.

Why it matters: Like Trump, Kutti and Floyd have tested the limits of their free speech rights against concerns for safety among witnesses, judges, prosecutors and court staff. Kutti’s post comes the closest to a direct threat, however.

New York financial fraud

In a reversal, defense won’t call Eric Trump to testify

Key players: Trump Org. executive vice president Eric Trump, Trump Org. executive vice president Alan Garten, accounting expert Eli Bartov, New York Attorney General Letitia James

• Trump’s second-oldest son will no longer be called to testify by the defense in the trial in which Engoron will decide penalties for years of financial fraud carried out by Trump, his adult sons and their family business, NBC News reported.

• Eric Trump, who is also named as a defendant in James’ $250 million civil lawsuit, was originally scheduled to take the stand again on Wednesday, but Garten told NBC that “everything Eric was going to cover was covered by other witnesses."

• On Thursday, the former president is expected to return to the courtroom to watch Bartov’s testimony. Trump is slated to be the final witness called by the defense on Dec. 11.

• James will then call two witnesses for a quick rebuttal case that is expected to wrap up next Tuesday.

Why it matters: In his earlier testimony, Eric Trump claimed he had not worked on the company’s financial statements. Emails presented as evidence by prosecutors seemed to contradict those claims.

Jan. 6 election interference

D.C. court sends out questionnaire to prospective jurors who may serve in Trump trial

Key players: Special counsel Jack Smith, Judge Tanya Chutkan

• The U.S. District Court for the District of Columbia sent prospective jurors a “pre-screening” form last week, the first such contact made in what appears to be the trial scheduled to begin on March 4, NBC News reported.

• While the form did not specifically mention that case, it inquired about the recipient’s availability to appear in court on Feb. 9 to provide more information ahead of a March 4 trial.

• The form notes that the trial “may last approximately three months after jury selection is completed.”

• Last week, Chutkan rejected two motions from Trump’s lawyers to have the case dismissed, ruling that the former president is not immune from prosecution and that his indictment did not violate his free speech rights.

Why it matters: Given the timeline laid out in the prospective juror form, it is possible that a verdict in the case brought by Smith could be reached ahead of July 15, when Republicans will meet in Milwaukee to officially nominate their 2024 presidential candidate.

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Monday, Dec. 4

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After an appeals court reinstates a gag order imposed on former President Donald Trump by Judge Arthur Engoron, Trump’s lawyers move on Monday to appeal that decision to a higher court in New York. The defense case in the $250 million civil trial of Trump, his adult sons and family business begins its final week, with Trump’s testimony scheduled for Dec. 11. Here are the latest developments in the legal battles facing the man who is looking to return to the White House in 2024.

New York financial fraud

Trump’s lawyers try another appeal of Engoron’s gag order

Key players: Judge Arthur Engoron, clerk Allison Greenfield, Trump lawyer Clifford Robert, New York Court of Appeals

• Days after an appeals court in New York reinstated Engoron’s gag order designed to prevent Trump from disparaging Greenfield and other members of his staff, Trump’s lawyers filed a brief Monday with the New York Court of Appeals seeking an “expedited review” of that decision, CBS News reported.

• "Without expedited review, [the defendants] will continue to suffer irreparable injury daily, as they are silenced on matters implicating the appearance of bias and impropriety on the bench during a trial of immense stakes," Robert wrote in the filing.

• Trump has repeatedly attacked Greenfield, accusing her of being biased against him and wielding too much influence over Engoron in the case in which the judge ruled Trump, his adult sons and family business are liable for years of financial fraud.

• Engoron has so far fined Trump $15,000 for his comments about Greenfield.

• Trump’s attacks, prosecutors told the appeals court, have led to a torrent of threats made against Engoron and Greenfield.

Why it matters: As with Engoron’s ultimate ruling in the case, Trump is free to pursue appeals of the gag order. By the same token, however, courts are under no obligation to take up those appeals.

Defense case enters final week

Key players: Real estate valuation experts Frederick Chin, Lawrence Moens and John Shubin, New York Attorney General Letitia James, Judge Arthur Engoron

• Trump’s lawyers began the final week of their defense by calling Chin, who testified Monday that the valuations of Trump’s properties were not over inflated because they relied not on their current value but on their long-term prospects, ABC News reported.

• In her $250 million civil suit, James alleges that Trump pocketed more than a billion dollars on favorable loan and insurance rates obtained by falsely representing the value of his financial portfolio.

• Moens and Shubin, who will testify later this week, will counter Engoron’s ruling that Trump overvalued his Mar-a-Lago home and country club by at least 2,300%.

• Next Monday, Trump is scheduled to be the final witness for the defense and is expected to conclude his testimony the same day.

• Engoron has asked the prosecution and defense to submit closing arguments on Jan. 11, and has promised to issue his ruling shortly thereafter.

Why it matters: Engoron’s ruling could impact Trump’s ability to conduct business in the state of New York and may well cost the former president millions in fines.