Appeals Court Upholds Trump Gag Order in Election Case, but Narrows Terms
A federal appeals court on Friday largely upheld the gag order imposed two months ago on former President Donald J. Trump in the criminal case accusing him of plotting to overturn the 2020 election, but narrowed its terms to allow him, among other things, to go after Jack Smith, the special counsel who has filed two indictments against him.
In its ruling, a three-judge panel of the court struck a cautious balance between protecting many of the people involved in the federal case in Washington from Mr. Trump’s relentless attacks and giving leeway to the former president to speak his mind while he is running for office. The ruling permits Mr. Trump to continue asserting that the prosecution is a political vendetta and to directly criticize Mr. Smith, the public face of the prosecution.
The three appellate judges — all of whom were appointed by Democratic presidents — wrote that they agreed “that some aspects of Mr. Trump’s public statements pose a significant and imminent threat to the fair and orderly adjudication of the ongoing criminal proceeding, warranting a speech-constraining protective order.”
But the order issued by the lower court, they said, “sweeps in more protected speech than is necessary.”
The ruling by the panel of the U.S. Court of Appeals for the District of Columbia Circuit was the latest — but perhaps not the last — step in a protracted battle over the gag order, which was put in place in mid-October by the trial judge, Tanya S. Chutkan. Mr. Trump’s lawyers have promised to challenge any remaining portions of the order all the way to the Supreme Court.
While gag orders are not uncommon in criminal prosecutions, the order imposed in the election interference case has resulted in a momentous clash. Mr. Smith’s prosecutors have sought to protect themselves and their witnesses from Mr. Trump’s “near-daily” social media barrages, while the former president has argued that the government has tried to censor his “core political speech” as he mounts another bid for the White House.
Mr. Trump has often blurred the lines between his criminal cases and his presidential campaign, using court appearances to deliver political talking points and employing public remarks to assail his prosecutions as a form of persecution.
Complicating matters, several of his political adversaries, including former Vice President Mike Pence, are likely to be witnesses against him when the election subversion case goes to trial as early as March.
When Judge Chutkan first imposed the order after a contentious hearing in Federal District Court in Washington, she sought a middle ground between these competing claims with what she believed was a narrowly tailored decision.
Her order forbade Mr. Trump from publicly maligning Mr. Smith or any members of his staff, and any court employees or potential witnesses involved in the matter. But it permitted him to criticize the Justice Department, President Biden and herself. It also allowed him to maintain that the prosecution itself was a partisan retaliation against him.
The appeals court altered Judge Chutkan’s order by barring Mr. Trump from making any public statements about “known or reasonably foreseeable witnesses,” but only about matters that concerned their participation in the case. It also added a new prohibition that forbade Mr. Trump from commenting on the relatives of lawyers or court staff members involved in the case if the remarks were intended to interfere with how the trial participants were doing their jobs.