Federal Appeals Court Upholds Gag Order on Trump, Allows Limited Criticism of Special Counsel
In a much-anticipated decision, a federal appeals court has upheld the gag order placed on former President Donald J. Trump in the criminal case accusing him of plotting to overturn the 2020 election. However, the court also narrowed the terms of the gag order, allowing Trump to continue attacking special counsel Jack Smith.
The fight over the gag order has raised complex issues involving the First Amendment rights of a presidential candidate and concerns that vitriolic language could incite violence among his supporters. The U.S. Court of Appeals for the District of Columbia Circuit agreed that a gag order was justified, but made adjustments to give Trump broader latitude to criticize some of the individuals involved in the case.
The court sought to strike a balance between the integrity of the judicial system and Trump’s right to free speech. While the original measures of the gag order restricting attacks on Mr. Smith’s staff and court staff remain in place, the court loosened the restrictions to allow Trump to portray the prosecution as a political vendetta and to directly criticize the Biden administration and the Justice Department.
One expanded restriction bars Trump from commenting on the relatives of lawyers or court staff members involved in the case if the remarks were intended to interfere with the trial participants’ work.
Judge Patricia A. Millett wrote for the panel, “We do not allow such an order lightly. Mr. Trump is a former president and current candidate for the presidency, and there is a strong public interest in what he has to say. But Mr. Trump is also an indicted criminal defendant, and he must stand trial in a courtroom under the same procedures that govern all other criminal defendants. That is what the rule of law means.”
The court also loosened the restrictions by allowing Trump to criticize witnesses if his remarks were not connected to their roles in the case. The ruling allows Trump to refer to Mr. Smith as a “thug” or “deranged,” as well as criticize other political adversaries who may be witnesses in the trial, such as former Vice President Mike Pence and former Attorney General William P. Barr.
Trump’s legal team plans to challenge the gag order all the way to the Supreme Court, arguing that his remarks are constitutionally protected as political speech and that he cannot be held responsible for the responses of his listeners.
The decision by the appeals court means that the two gag orders placed on Mr. Trump have now been reinstated after judges had temporarily paused them. One was in the federal election case, and the other in his civil fraud case in Manhattan. Late last month, a state appeals court in New York put back in place a gag order barring Mr. Trump from attacking the court staff in his civil trial.