Former President Donald Trump’s fiery rhetoric about his legal travails will be tested in a Washington, D.C., appeals court Monday in arguments that will determine how he can speak about a criminal case he has made part and parcel of his reelection bid.
Trump has asked a panel of judges at the U.S. Court of Appeals for the District of Columbia Circuit to lift a partial gag order imposed by the federal judge in a case accusing him of crimes in his effort to overturn the 2020 election.
The appeal, set for oral arguments Monday, comes as Trump rages against the court-imposed restrictions. He and his congressional allies have sought to leverage the case as part of his reelection campaign.
Experts said the case goes to the heart of free speech and the courts’ responsibility to control their proceedings and keep witnesses from living in fear.
District Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia issued the order after Trump made statements about witnesses and prosecutors that could provoke violence. Her order prohibits Trump from “targeting” witnesses, prosecutors or court staff with language that could cause them to become harassed or threatened.
Margaret Tarkington, a law professor specializing in the First Amendment at Indiana University School of Law, said that order may have several problems that make it difficult to uphold — but the appeals court also faces problems with Trump himself.
“I have to say that there are parts of the order that are troubling to me that I think are potentially unconstitutional. But the real problem is this: We’ve never had someone like Trump before, really, as a criminal defendant,” Tarkington said.
Criminal defendants normally have little ability to counter the government’s ability to drown them out in a criminal case, Tarkington said, but Trump is different. His millions of social media followers and political apparatus give him a megaphone with a volume rarely heard from a criminal defendant.
“We have not seen other criminal defendants who have either the ability, because you have to have the social following, and the power to do that,” Tarkington said.
Chutkan imposed the partial gag order last month at the request of special counsel John L. “Jack” Smith following dozens of statements Trump had made about the case since prosecutors filed it in August.
At various times, Trump called Smith a “thug,” said witnesses may lie about him or that witnesses deserve the death penalty.
When Chutkan ruled in Smith’s favor on the order, she said no other criminal defendant would be allowed to “call a prosecutor deranged, or a thug, and I will not permit it here simply because he is running a political campaign.”
Violations of the order could carry civil fines, sanctions and even lead to a new date for the trial currently scheduled for March, Chutkan said.
Trump appealed the order, arguing it violated his right to free speech. The D.C. Circuit paused it while it considers his case. Judges Patricia A. Millett, Cornelia T.L. Pillard and Bradley N. Garcia are scheduled to hear oral arguments Monday.
Trump has attempted to cast the prosecution as the Biden administration run amok. In a brief filed earlier this month, Trump’s attorneys argued the administration has attempted to silence its most prominent political foe.
“No court in American history has imposed a gag order on a criminal defendant who is actively campaigning for public office — let alone the leading candidate for President of the United States,” the Trump brief said.
As the fight over Trump’s gag order continues, his allies in Congress have taken up the torch.
Rep. Andrew Clyde, R-Ga., offered one of numerous amendments to the House version of the fiscal 2024 Commerce-Justice-Science funding bill that would prevent the prosecution of Trump.
The House rejected the rule Wednesday governing floor debate on that bill and ultimately left for Thanksgiving without beginning floor work on the measure. But Clyde said at a House Rules Committee meeting Tuesday that “corrupt actors” had targeted Trump for years, and ignored his free speech rights by bringing charges because he raised concerns about the 2020 election.
“We must ensure that voters do not have their voices unjustly silenced in their decision to determine the next president through the malign influence of a rogue regime,” Clyde said.
Smith, who heads the team prosecuting Trump, was appointed by Attorney General Merrick B. Garland after Trump announced his reelection campaign.
The federal indictment says Trump conspired to defraud the U.S., disenfranchise voters and conspired and attempted to obstruct an official proceeding. Smith’s statement after the indictment was unsealed called the attack on the Capitol on Jan. 6, 2021, “an unprecedented assault on the seat of American democracy.”
Members of Congress have sought to align themselves with Trump’s defense directly. Rep. Marjorie Taylor Greene, R-Ga., attended the initial court hearing over the gag order and has sponsored amendments that would defund Smith’s salary or office.
In a brief filed Tuesday, Smith urged the appeals court to keep the gag order, as it could allow witnesses in the case to speak freely and prevent violence.
“There has never been a criminal case in which a court has granted a defendant an unfettered right to try his case in the media, malign the prosecutor and his family, and … target specific witnesses with attacks on their character and credibility,” Smith wrote in his brief.
Smith wrote that Trump doesn’t have to threaten directly, as he has known for years that if he criticizes a witness, his supporters will do the rest. Trump used the same strategy in his effort to overturn the 2020 election, Smith argued, and a similar one has been used since the 1200s, when English King Henry II suggested the death of priest Thomas Becket.
“Repeated attacks are often understood as a signal to act — just as King Henry II’s remark, ‘Will no one rid me of this meddlesome priest?’ resulted in Thomas à Becket’s murder,” Smith wrote.
Since the appellate court paused the gag order, Smith said Trump has continued making statements about witnesses, putting the case at risk.
Tarkington said that several parts of the order could give the appeals court pause, particularly the vague phrase that Trump couldn’t “target” particular witnesses. She said that term and other parts of the order could be open to too much interpretation.
Tonja Jacobi, a law professor at Emory University Law School in Atlanta, saw the issue in a different way. Although the Supreme Court has embraced a broad view of free speech rights, she said Chutkan has a responsibility to protect the process, which includes keeping witnesses from being intimidated.
“If it comes up in those terms that could be a bad thing for Trump if it is seen as an attack on the power of the judiciary,” Jacobi said.
Assertions that Trump should receive special consideration because of his status as presidential candidate shouldn’t carry water, Jacobi said.
“Some bum on the street is entitled to as much free speech as Trump is,” Jacobi said.