A federal appeals court in Washington, D.C. is considering reinstating former President Donald Trump’s previous gag order with certain modifications. The original partial gag order was imposed by Judge Tanya S. Chutkan, who is overseeing the federal case on allegations that Trump conspired to overturn the 2020 election. The three-member panel of judges overseeing the appeal has indicated that they might modify the conditions of the order or limit its impact on certain individuals. This may include allowing Trump to criticize Jack Smith, the special counsel in charge of the federal cases against him.
The panel of judges consists of Judge Patricia Millett, Judge Cornelia Pillard, and Judge Bradley Garcia. All three judges were appointed by Democratic presidents. Millett and Pillard were nominated by former President Barack Obama, while Chutkan was nominated for the district court by Obama. President Joe Biden nominated Garcia.
Judge Chutkan’s original gag order, imposed in October, prohibited Trump from publicly maligning prosecutors, potential witnesses, or court employees involved in the case. However, Chutkan did permit Trump to criticize the Justice Department, President Biden, and herself. The original gag order was put on hold when the appeals court agreed to hear the case. The current restrictions of the gag order limit Trump’s ability to directly attack Smith, Smith’s team, court staff, or potential trial witnesses. However, he is allowed to criticize the Justice Department, maintain his innocence, and claim that the case is politically motivated.
During the Monday hearing, which lasted over two hours, the three judges expressed doubts about the claim from Trump’s attorney that the gag order violated the former president’s First Amendment rights. The judges suggested that they might modify the order to allow Trump to openly criticize special counsel Jack Smith while still prohibiting criticism of witnesses and court staff. Judge Pillard noted that Trump should be able to defend himself in a potential GOP debate without having to adhere to strict rules.
The judges discussed the need to strike a balance between protecting Trump’s First Amendment rights and preserving the integrity of the criminal trial process. They emphasized the importance of using a careful approach that avoids skewing the political arena. The court did not make an immediate decision, but their inquiries suggest a potential limitation on the scope of the gag order.
The dispute over the federal gag order coincides with a state appeals court in New York reviewing the validity of two similar gag orders placed on Trump by Justice Arthur F. Engoron, who is overseeing a civil fraud trial in Manhattan. These orders, currently on hold, would prevent Trump or his lawyers from targeting Justice Engoron’s law clerk, who has faced repeated attacks from Trump and his allies.
Overall, the federal appeals court in Washington, D.C. is considering reinstating Trump’s gag order with modifications, potentially allowing him to criticize the special counsel while limiting his attacks on other individuals involved in the case. The court’s decision will have implications for Trump’s expression as a defendant and as a potential candidate for the 2024 Republican presidential nomination.