Topline
Former President Donald Trump asked a federal appeals court late Thursday to lift the gag order against him in his criminal case over the 2020 election while the order is appealed, after a judge reimposed it earlier this week—and suggested that if the appeals court doesn’t rule in his favor, he plans to take his fight to the Supreme Court.
Former President Donald Trump speaks to the media during a break in his civil fraud trial at New … [+] York State Supreme Court on October 24 in New York City.
Key Facts
Trump is appealing a gag order imposed by U.S. District Judge Tanya Chutkan, which prohibits him from making public statements that “target” Justice Department Special Counsel Jack Smith or his staff; defense counsel and their staff; any court staff or “any reasonably foreseeable witness or the substance of their testimony.”
Chutkan briefly paused the order after Trump first appealed it but then reimposed it Sunday night, and has found the gag order is necessary because Trump’s statements “pose sufficiently grave threats to the integrity of these proceedings that cannot be addressed by alternative means.”
In the court filing Thursday, Trump’s attorneys argued the appeals court should pause the gag order until it rules on whether to throw it out entirely, claiming the order violates his First Amendment rights and the rights of his supporters.
Trump’s “uniquely powerful voice” has been “central to the American fabric for decades,” and “the prosecution’s claim that his core political speech suddenly poses a threat to the administration of justice is baseless,” his attorneys allege, claiming the order also “shields public figures from public criticism” because the prosecutors and potential witnesses Trump’s barred from speaking about are high-level officials.
The ex-president asked the court to expedite his request “to the greatest extent possible” and pause the gag order immediately while it considers the issue, before coming out with a more lasting ruling on whether to lift the order by November 10.
If the court doesn’t ultimately lift the gag order while the appeal plays out, Trump asked the court to extend a shorter pause on the order for seven days so that he can appeal his request to the Supreme Court.
What To Watch For
Trump’s federal election case, which concerns his efforts to overturn the 2020 election, is scheduled to go to trial in March 2024, with jury selection starting in February. The ex-president faces four felony charges for conspiracy to defraud the U.S., obstruction and conspiracy to obstruct an official proceeding and conspiracy against rights—which all carry potential prison sentences if Trump is convicted. Trump has asked the court to pause all proceedings in the case until his motion to throw out the charges against him has been resolved—which would likely delay the trial—but Chutkan hasn’t ruled yet on that request.
Crucial Quote
“President Trump’s viewpoint and modes of expression resonate powerfully with tens of millions of Americans. The prosecution’s request for a Gag Order bristles with hostility to President Trump’s viewpoint and his relentless criticism of the government—including of the prosecution itself,” Trump’s attorneys wrote in their filing Thursday. “The Gag Order embodies this unconstitutional hostility to President Trump’s viewpoint.”
Chief Critic
Chutkan shot down Trump’s arguments for pausing the gag order in her ruling reimposing it, writing that Trump’s claims the order violates his First Amendment rights “ignore that the court … recognized those values but, in balancing them against the potential prejudice resulting from certain kinds of statements, found them outweighed.” “Contrary to Defendant’s argument, the right to a fair trial is not his alone, but belongs also to the government and the public,” Chutkan wrote.
What We Don’t Know
What punishments Trump will face if the gag order stays in place and he violates it. Chutkan has said only that “the court will assess [the] substance and context” of any Trump statements that could be considered violations before determining if he went against the order. The ex-president also has a gag order against him in his ongoing civil trial in New York over whether he and his company fraudulently misstated the value of their assets, which bars him from speaking publicly about court staff. Trump has already paid a combined $15,000 for two violations of that order, and Judge Arthur Engoron has suggested he could face additional punishments including steeper fines, being held in contempt or possible imprisonment if he continues to violate it.
Key Background
The federal election case is one of four criminal cases against Trump, along with a separate federal case over his handling of classified White House documents and cases in state courts in New York and Georgia. Chutkan is so far the only judge in the criminal cases to impose a gag order on Trump, though the issue has been a source of speculation since his first indictment in March as the ex-president has continued to lash out against prosecutors, judges, witnesses and other perceived enemies in the cases against him. Trump has strongly opposed all the allegations against him as politically motivated “witch hunts” brought by people who are biased against him, and has pleaded not guilty to all charges. In her decision Sunday reimposing the gag order, Chutkan noted Trump made statements while the gag order was temporarily paused that would have violated it if it were in effect, such as complaining about reports that former White House Chief of Staff Mark Meadows was given immunity in the election case in exchange for testifying to a grand jury. People who would make deals with prosecutors “are weaklings and cowards, and so bad for the future [of] our Failing Nation,” Trump wrote. “I don’t think that Mark Meadows is one of them, but who really knows?”
Further Reading
Trump Gag Orders: Here’s Everything The Ex-President Can’t Say In The Cases Against Him (Forbes)
Federal Judge Reinstates Trump’s Gag Order In Election Interference Case (Forbes)
