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Trump gag order reinstated but narrowed in Jan. 6 case

Former president Donald Trump speaks at a campaign rally Nov. 8 in Hialeah, Fla. MUST CREDIT: Jabin Botsford/The Washington Post  (Jabin Botsford/The Washington Post)
By Rachel Weiner Washington Post

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.

“The First Amendment unquestionably affords political speech robust protection,” Judge Patricia Millett wrote for the unanimous three-judge panel of the U.S. Court of Appeals for the D.C. Circuit. “But there is another fundamental constitutional interest at stake here. The existence of a political campaign or political speech does not alter the court’s historical commitment or obligation to ensure the fair administration of justice in criminal cases.”

The ruling upholds a ban on Trump speaking about the participation of witnesses in the investigation and likely testimony. But it removes from the gag order Special Counsel Jack Smith. 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.”

U.S. District Court Judge Tanya S. Chutkan, who is overseeing Trump’s trial, had barred 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 mixed ruling reflects the questions judges asked at oral argument in late November about the balance between Trump’s right to advocate for himself with the danger that his words will cause chaos in court. 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. And the U.S. Supreme Court has never weighed in on the constitutionality of gag orders against any criminal defendant.

The appeals court rejected the idea that Trump is entitled to say whatever he wants because he is running for president but questioned whether the gag order made it too difficult for him to campaign.

“Your client is not above the law that applies to all other Americans,” Pillard said during oral argument over the order. Millett likewise said that “the fact that we have a campaign going on does not matter” in deciding whether the restrictions violate the First Amendment.

“Labeling it core political speech begs the question of whether it is, in fact, political speech or whether it is political speech aimed at derailing or corrupting the criminal justice process,” she said.

J. Dean Sauer, representing Trump, repeatedly argued that “the context is absolutely critical,” which is that Trump’s prosecution is “inextricably intertwined with the issues that are being publicly debated” in the campaign. But he conceded that “our position would be that it’s still unconstitutional” to restrict Trump’s speech even if he were not running for president again. And Sauer could not provide an example of any speech he thought could be barred under a gag order that wouldn’t also be a criminal act already unprotected by the First Amendment.

“The Supreme Court has told us, whether you agree or not,” that “we are balancing … criminal process and free speech,” Millett told Sauer. “But I’m hoping you will agree, because the Supreme Court precedent is quite clear.”

At the same time, the court also questioned whether Trump’s rights could be restricted based on the actions of others.

“How do we know what he gets held accountable for?” Millett asked. “He’s expressing his views as the First Amendment allows, and in a social media world cannot be held responsible for what everyone, anywhere in the United States, does when they hear about it.”

They were particularly concerned with whether Trump could single out special counsel Jack Smith by name, with Pillard saying that “given the number of legal battles in which this defendant is embroiled, the only – the easiest way people have of referring to this case as opposed to the others is Jack Smith.” (Smith is handling two of the six active criminal and civil cases against Trump.)

“Surely he is has a thick enough skin,” Pillard said of Smith, a former international war crimes prosecutor.

Assistant U.S. Attorney Cecil VanDevender agreed that “merely … criticizing” Smith himself might not violate the gag order because the special counsel is “a unique case,” an individual prosecutor who also represents the Justice Department as an institution. He said Trump could also respond to criticism from potential witnesses without smearing them.

The judges suggested that such lines could be too confusing to expect Trump to follow, particularly if he chooses to participate in presidential debates. 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.

“He has to speak Miss Manners while everyone else is throwing targets at him?” Millett asked. “It would be really hard, when everyone else is going at you full bore, and, you know, your attorneys will have to have scripted little things that you can say.”

To the extent that Chutkan’s order was intended not just to protect people involved in the case but also to keep other Americans from getting a distorted view of it, the appeals judges suggested that was hopeless.

“It’s hard to see how this … order is going to succeed in preventing a trial in the court of public opinion,” Pillard said.

But the judges did say Chutkan was entitled to issue an order before threats or harassment derailed the case.

“As this trial approaches, the atmosphere is going to be increasingly tense,” Garcia said. “Why does the district court have to wait and see and wait for the threats to come? Rather than taking a reasonable action in advance?”

Sauer emphasized that most of the examples of people experiencing threats and harassment after being singled out by Trump came from 2020, too long ago in his view to be relevant.

“Trump has been posting about this case almost incessantly since the day it was filed,” Sauer said. “And they haven’t come forward with a single threat that’s even arguably inspired by any of his social media posts.”

A death threat against Chutkan, Sauer said, came from “an unemployed … mentally unstable, heavy alcoholic who sits on her couch drinking beer all day” who “watches the news – not reads things on social media – watches the news on TV, gets angry about it and makes angry, threatening calls.”

The government responded by noting that in his civil case in New York, after Trump disparaged the judge’s clerk on social media, 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.”

All members of the panel are Democratic appointees: two nominees under President Barack Obama, Judges Millett and Cornelia Pillard; and President Biden’s pick, Brad Garcia, who recently joined the court. Their ruling could be appealed to the full U.S. Court of Appeals for the D.C. Circuit, on which Democratic appointees outnumber Republican ones, and the U.S. Supreme Court.