Appeals court upholds key provisions of Trump gag order in federal Jan. 6 case

An appeals court largely upheld a gag order limiting former President Trump’s statements as he faces federal prosecution for seeking to block the transfer of power, broadening his ability to attack special counsel Jack Smith while leaving in place limitations on other parties.

The ruling from a three-judge panel of the D.C. Circuit Court of Appeals largely affirms a prior ruling from Judge Tanya Chutkan, who barred Trump from making statements that “target” foreseeable witnesses, court staff and prosecutors.

The appeals court refined that directive, barring Trump from any statements “made with the intent to materially interfere with, or to cause others to materially interfere with” the course of the case.

But it removed Smith from the list of protected court staff, giving Trump free rein to go after a prosecutor he is fond of taunting as “deranged.” 

“We agree with the district court 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. The district court’s order, however, sweeps in more protected speech than is necessary,” the panel wrote.

The panel took issue with the use of “target,” fearing it could restrict Trump from responding to those who may be both witnesses in the case, as well as campaign critics.

Their standard, the judges wrote, “allows the former President to continue to speak out about those same persons’ books, articles, editorials, interviews, or political campaigns as long as he does so in a manner that does not concern their roles as witnesses or the content of any expected testimony.”

But the bulk of the 68-page ruling backs Chutkan’s rationale behind imposing a gag order, backing her conclusions that Trump’s speech could disrupt the case, chill witness participation, and inspire real threats and intimidation for those involved in the case, while also concluding his candidate status does not outweigh the need to protect the trial.

“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,” the court found.

The judges cited the “torrent of threats and intimidation” leveled at those Trump singles out by way of his supporters, writing some messages are designed to “generate alarm and dread.”

It’s a dynamic that “trigger[s] extraordinary safety precautions,” the court wrote, and
“pose[s] a significant and imminent threat to individuals’ willingness to participate fully and candidly in the process, to the content of their testimony and evidence, and to the trial’s essential truth-finding function.”

They also noted that Trump’s attorneys were not able to counter that his speech motivates attacks from his followers.

“Mr. Trump has not shown that factual finding to be clearly erroneous, and we hold that the record amply supports it,” they wrote.

Friday’s ruling largely tracks with the signals the trio of judges sent during oral arguments, held just before Thanksgiving.

During the marathon session, which was scheduled for 40 minutes but lasted more than two hours, the judges pushed back on Trump’s lawyer’s argument that even a more limited gag order would chill Trump’s protected political speech.

But the judges did appear less concerned about statements against Smith himself as opposed to people on his team. The Justice Department contended that threats against lower-level prosecutors might make them think twice before pressing on with the case.

Smith sat in the first row for the session but did not argue the appeal.

In the Friday ruling, the judges said Smith’s status as a public figure sets him apart from other career Justice Department officials working on the case.

“As a high-ranking government official who exercises ultimate control over the conduct of this prosecution, the Special Counsel is no more entitled to protection from lawful public criticism than is the institution he represents,” they wrote.

The judges were also dismissive of any protections Trump might be afforded as a candidate for office, writing that “no one is entitled to one free bite at derailing witness testimony or impeding the trial court’s ability to function.”

“The existence of a political campaign or political speech does not alter the court’s historical commitment or obligation to ensure the fair administration of justice in criminal cases,” they wrote, also noting that courts cannot remain “helpless to act until witnesses have been intimidated [and] violence has been attempted.”

Trump’s campaign on Friday focused on the aspects of the ruling that overturned Chutkan’s directives.

“Today, the D.C. Circuit Court panel, with each judge appointed by a Democrat President, determined that a huge part of Judge Chutkan’s extraordinarily overbroad gag order was unconstitutional,” campaign spokesman Steven Cheung said in a statement.

“President Trump will continue to fight for the First Amendment rights of tens of millions of Americans to hear from the leading Presidential candidate at the height of his campaign. The Biden-led witch hunts against President Trump and the American people will fail.”

Zach Schonfeld contributed.

Updated at 3:22 p.m.