A federal appeals court in Washington on Friday largely upheld a gag order on former President Donald Trump in his 2020 election interference case but narrowed the restrictions on his speech.
The three-judge panel’s ruling modifies the gag order to allow the Republican 2024 presidential front-runner to make disparaging comments about special counsel Jack Smith, but it reimposes a bar on speech about court staff and limits what he can say about known or reasonably foreseeable witnesses in the case.
The unanimous ruling is mostly a win for Smith’s team, with the judges agreeing with prosecutors that Trump’s often-incendiary comments about participants in the case can have a damaging practical impact and rejecting claims by defense attorneys that any restrictions on the ex-president’s speech amounted to an unconstitutional gag order. It lays out fresh parameters about what Trump can and cannot say about the case as he both prepares for a March trial and campaigns to reclaim the White House.
“Mr. Trump’s documented pattern of speech and its demonstrated real-time, real-world consequences pose a significant and imminent threat to the functioning of the criminal trial process in this case,” Judge Patricia Millett wrote for the court, noting that many of the targets of Trump’s verbal jabs “have been subjected to a torrent of threats and intimidation from his supporters.”
Though Trump has a constitutional right to free speech, she noted, he “does not have an unlimited right to speak.”
Even so, the court took steps to narrow the gag order imposed in October by U.S. District Judge Tanya Chutkan, which in addition to barring inflammatory comments about Smith and court staff also restricted Trump’s right to target witnesses. The judges ruled that that part of the order was overly broad, freeing Trump to talk to or about potential witnesses — including about their books, interviews and political campaigns — provided that the comments are not about those people’s potential participation in the investigation or tria or about the content of any expected testimony.
“The interest in protecting witnesses from intimidation and harassment is doubtless compelling, but a broad prohibition on speech that is disconnected from an individual’s witness role is not necessary to protect that interest, at least on the current record,” the court wrote.
“Indeed,” the opinion says, “public exchanges of views with a reasonably foreseeable witness about the contents of his forthcoming book are unlikely to intimidate that witness or other potential witnesses weighing whether to come forward or to testify truthfully.”
Trump could still appeal the ruling to the full court or to the Supreme Court. A lawyer for Trump did not immediately return a message seeking comment.
Chutkan, who was appointed by President Barack Obama, imposed the gag order following a request from prosecutors, who cited Trump’s pattern of incendiary comments. The prosecutors said restrictions were necessary to protect the integrity of the case and shield potential witnesses and others involved in the case from harassment and threats inspired by Trump’s incendiary social media posts.
The order has had a back-and-forth trajectory through the courts since prosecutors proposed it, with the U.S. Court of Appeals for the D.C. Circuit lifting the gag order while it considered Trump’s challenge.
The case accuses Trump of plotting with his Republican allies to subvert the will of voters in a desperate bid to stay in power in the run-up to the riot by his supporters on Jan. 6, 2021. It is scheduled to go to trial in March in Washington’s federal court, just blocks away from the U.S. Capitol.
The special counsel has separately charged Trump in Florida with illegally hoarding classified documents at his Mar-a-Lago estate after he left the White House following his 2020 election loss to Democrat Joe Biden. That case is set for trial next May, though the judge has signaled that the date might be postponed.
Trump has denied any wrongdoing and has claimed the cases against him are part of a politically motivated effort to keep him from returning to the White House.
