A federal appeals court upheld a narrower version of a gag order against Donald Trump on Friday in response to complaints from the former president about his right to free speech as a candidate for America’s highest public office.
U.S. District Judge Tanya Chutkan, who is overseeing Trump’s federal election interference case, originally imposed the gag order in October to protect the integrity of the judicial process after Trump publicly smeared it.
Under Chutkan’s original order, Trump was barred from making any public comment against any potential witnesses, prosecutors, court staffers or special counsel Jack Smith, whom he has referred to as a “thug” and “deranged lunatic.”
The appeals court exempted Smith from the gag order, and said Trump was free to claim the whole case was politically motivated. He still cannot go after witnesses, court staff or attorneys other than Smith.
“[W]e hold that some aspects of the defendant’s speech pose a significant and imminent risk to the fair and orderly adjudication of this criminal proceeding,” the panel said.
“We do not allow such an order lightly,” it noted.
Trump’s team had challenged the original order by arguing that, as a presidential candidate — and the leading Republican candidate, to boot — the court had no right to restrict his speech.
Doing so was “unprecedented” and set “a terrible precedent on future restrictions on core political speech,” Trump attorney John Sauer said at a hearing last month before a panel of judges on the U.S. Court of Appeals for the D.C. Circuit.
The panel appeared skeptical of Trump’s argument, asking Sauer why the court should not take into account the fact that Trump’s public commentary has led to harassment and threats in the past. Fear of retribution of any sort could prevent witnesses or jurors from wanting to participate in the judicial process.
But the panel also had sharp questions for prosecuting attorneys about the scope of the gag order.
Circuit Judge Patricia Millett said the prosecuting attorneys did not seem “to give much balance at all to the First Amendment’s vigorous protection of political speech and the notion that high profile public figures or governmental officials who’ve taken on enormous responsibility like prosecutors can’t stand up to some inflammatory language,” per CNN.
Smith’s camp had submitted a 67-page court filing in support of the gag order that argued Trump’s statements threaten the administration of justice.
The appeals court concluded its order by noting Trump’s high-profile status:
“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.”
Trump appeared to regard the panel’s decision as a win, celebrating in a statement that “a huge part of” Chutkan’s order was negated by three judges who had been appointed by Democrats.