“Appeals Court Upholds, but Narrows, Gag Order on Trump in Election Case”


A federal appeals court on Friday largely upheld the gag order imposed two months ago on former President Donald J. Trump in the criminal case accusing him of plotting to overturn the 2020 election, but narrowed its terms to allow him to go after Jack Smith, the special counsel who has filed two indictments against him.

In its ruling, a three-judge panel of the court struck a cautious balance between protecting many of the people involved in the federal case in Washington from Mr. Trump’s relentless attacks and giving leeway to the former president to speak his mind while he is running for office. The ruling permits Mr. Trump to continue asserting that the prosecution is a political vendetta and to directly criticize Mr. Smith, the public face of the prosecution.

The three appellate judges — all of whom were appointed by Democratic presidents — wrote that they agreed “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.”

But the order issued by the lower court, they said, “sweeps in more protected speech than is necessary.”

From the court’s unanimous opinion:

Specifically, we affirm the Order to the extent it prohibits all parties and their counsel from making or directing others to make public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding. The Order is also affirmed to the extent it prohibits all parties and their counsel
from making or directing others to make public statements about—(1) counsel in the case other than the Special Counsel, (2) members of the court’s staff and counsel’s staffs, or (3) the family members of any counsel or staff member—if those statements are made with the intent to materially interfere with, or to cause others to materially interfere with, counsel’s or staff’s work in this criminal case, or with the knowledge that such interference is highly likely to result. We vacate the Order to the extent it covers speech beyond those specified categories. See 28 U.S.C. § 2106. The administrative stay issued by this court on November 3, 2023, is hereby dissolved.

As should be clear, but to avoid any potential doubt, as affirmed in part and vacated in part, the Order also leaves open the categories of speech the district court explicitly stated were permissible under its initial ruling. See Order at 3. Mr. Trump is free to make statements criticizing the current administration, the Department of Justice, and the Special Counsel, as well as statements that this prosecution is politically motivated or that he is innocent of the charges against him. See id.

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.

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