Appeals court largely upholds Trump’s federal gag order

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The ruling reestablishes restrictions, tax in october by US District Court Judge Tanya Chutkan, but suspended amid the appeal, due to Trump’s ability to attack key witnesses in the case against him. Trump is also prohibited from attacking prosecutors in the case, other than special counsel Jack Smith, and court staff, if the statements are seen as an attempt to interfere with the proceedings.

The provisions, however, represent a notable reduction from Chutkan’s original gag order, which the appeals court said “is overly broad.” The panel ruled that Trump still has the right to criticize several figures who played a role in the 2020 election saga, as long as he does not focus on his potential testimony at the trial, scheduled to begin March 4.

The ruling is the second time in recent days that appeals courts have upheld gag orders against Trump: last week, a New York appeals court reinstated a more limited gag in his civil fraud case in New York. However, the D.C. Circuit panel is the first appeals court to provide broad justification for restricting the likely Republican presidential nominee’s speech.

Shortly after the D.C. Circuit ruling, Trump said on social media that he will appeal. He can appeal to the full court of appeals or to the Supreme Court. The outcome of that fight could greatly influence the 2024 presidential campaign, where Trump has sought to make defending himself against criminal cases a centerpiece of his message.

“President Trump will continue to fight for the First Amendment rights of tens of millions of Americans to hear from the presidential front-runner at the height of his campaign,” said Trump spokesman Steven Cheung, noting that the judges on the panel are all Democratic appointees. . In addition to Millett, an Obama appointee, the panel included Cornelia Pillard, an Obama appointee, and Bradley Garcia, a Biden appointee.

A spokesman for the special counsel’s office declined to comment.

In particular, the D.C. Circuit panel took aim at some of Trump’s most explosive arguments and talking points in his campaign. For example, the justices rejected Trump’s argument that courts should simply postpone his trial until after the election to avoid the First Amendment problems raised by the gag order. The panel concluded that delaying the trial would “aggravate” threats to the process rather than alleviate them.

“Postponing the trial would incentivize criminal defendants to make prejudicial speeches as a means of delaying their prosecution,” Millett wrote. “A criminal defendant may not use significantly and imminently harmful speech to override the district court’s control and management of the trial schedule.”

Similarly, the court dismissed Trump’s concerns that the gag order would stifle his political speech at the height of his presidential bid.

“The existence of a political campaign or political speech does not alter the court’s historic commitment or obligation to ensure the fair administration of justice in criminal cases,” the panel concluded. “A trial participant’s participation in political speech cannot degrade or diminish that essential judicial function. … You cannot evade that legitimate limitation by disguising messages addressed to witnesses in the garb of political speech.”

The court took particular issue with Trump’s claim that his social media posts mentioning potential trial witnesses, such as former chief of staff Mark Meadows and retired general Mark Milley, were political speech protected by the First Amendment. .

“The district court had the authority to prevent Mr. Trump from laundering communications relating to witnesses… through social media posts or other public comments,” the panel concluded.

The panel also found that people who are targets of Trump’s hostility often suffer threats and harassment from others. The court cited numerous examples of witnesses complaining of fear and danger after Trump attacked them with comments or social media posts.

“It is the court’s duty and authority to prevent speech by trial participants, including the defendant, when the record shows that their words have ‘extraordinary power to undermine or destroy the effectiveness of the criminal justice system,'” Millett wrote, quoting a 1991 Supreme Court case detailing the government’s right to regulate lawyers’ speech.

The judges cited Trump’s attack on a judge and his law clerk in New York, where his business empire is in the midst of a civil trial over alleged fraudulent practices, attacks that resulted in significant threats. They also cited the threats faced by two Georgia election workers falsely accused by Trump and other allies of tampering with ballots in 2020.

“Sir. Trump himself recognizes the power of his words and their effect on his audience, and agrees that his followers “listen [him] like no one else,’” the judges noted.

The panel rejected arguments by Trump’s lawyers that curbing his speech because of how some of his supporters might react amounted to a “heckler’s veto” that courts have traditionally said is not a good enough reason to restrict rights. of the First Amendment.

“Within a judicial proceeding, the trial court’s duty to protect the operation of the criminal process is not limited by the doctrine of incitement,” Millett wrote.

While the appeals court eased some of the limits Chutkan placed on Trump’s public statements about court personnel and faulted her for vague language in her initial order, Millett said Chutkan has the power to control participants’ speech. of the trial to maintain the integrity of the process.

“Just as a court has a duty to prevent a trial from becoming a carnival… it can also prevent trial participants and staff from having to operate under siege,” Millett wrote.

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