WASHINGTON, D.C. – A federal appeals court on Monday indicated that it may uphold, albeit with a reduced scope, the gag order placed on former President Donald Trump. The order is linked to a criminal case accusing Trump of conspiring to overturn the results of the 2020 election.
During a two-hour hearing, a three-judge panel expressed doubt towards the argument presented by Trump’s legal team that the gag order infringed upon the former president’s First Amendment rights and his ability to engage in “core political speech.”
The panel from the U.S. Court of Appeals for the D.C. Circuit also suggested the possibility of narrowing the order’s reach. This could potentially permit Trump to publicly criticize special counsel Jack Smith, who is overseeing the federal prosecutions against the former president while keeping in place a ban on disparaging witnesses and court staff.
The hearing is the most recent development in an ongoing legal battle between Trump’s lawyers and Smith’s team over a limited gag order issued last month by Judge Tanya Chutkan. Chutkan’s order prohibited Trump from making public statements that “target” Smith, his staff, court staff, and potential witnesses in the election-subversion case.
Trump promptly appealed the order, leading the D.C. Circuit to temporarily suspend the gag order while it considered Trump’s legal challenge. The panel, composed of Judges Patricia Millett and Cornelia Pillard, both Obama appointees, and Judge Bradley Garcia, a Biden appointee, has yet to announce a ruling. The Supreme Court can hear appeals from either side.
The judges proposed that a gag order could serve as a preventive measure to protect individuals involved in the case from threats or harassment. They noted that the government had identified a pattern in which individuals targeted by Trump subsequently face harassment from others.
Trump’s lawyer, D. John Sauer, argued that the gag order was unprecedented and set a dangerous precedent for future restrictions on political speech. He suggested that the order would improperly restrict Trump’s speech based on the concern that it might inspire harassment or threats to witnesses.
The panel, however, questioned whether part of the gag order was overly restrictive in limiting Trump’s speech and preventing him from criticizing prosecutors. The panel’s line of questioning suggested a potential endorsement of a narrower gag order that would balance Trump’s free-speech rights with the need for a fair trial.