The appeals court upholds the ban on Trump in the Washington case, but limits the boundaries of his speech

FILE - Republican presidential candidate and former President Donald Trump speaks with Texas State Troopers and Guardsmen at the South Texas International Airport in Edinburg, Texas, on Sunday, Nov. 19, 2023.  A federal appeals court will hear arguments Monday, Nov. 20, on whether a gag order against Donald Trump should be reinstated in the federal case accusing him of plotting to overturn the results of the 2020 presidential election.  (AP Photo/Eric Gay, File)

(Eric Gay/associated press)

The appeals court upholds the ban on Trump in the Washington case, but limits the boundaries of his speech


Dec. 8, 2023

A federal appeals court in Washington on Friday largely upheld a silence order against Donald Trump in his 2020 election interference case, but relaxed restrictions on his speech to give the former president a chance to criticize the special counsel who brought the case.

The three-judge panel’s ruling changes the silence order that allows the 2024 Republican presidential candidate to make disparaging comments about special counsel Jack Smith at the polls, but it puts new limits on what Trump can say about known or reasonably expected witnesses in the case and about court staff and other lawyers.

The unanimous ruling is largely a victory for Smith’s team, with the justices agreeing with prosecutors that Trump’s often inflammatory comments about trial participants could have a damaging practical impact, and rejecting claims by attorneys challenging the restrictions on limiting the ex-president’s speech are rejected. to an unconstitutional muzzling. The decision sets new parameters on what Trump can and cannot say about the case as he prepares for a trial in March and campaigns to win back the White House.

“Mr. Trump’s documented speech pattern and demonstrated real-time, real-world consequences pose a significant and imminent threat to the functioning of the criminal process in this case,” Judge Patricia Millett wrote for the U.S. Court of Appeals for the DC She noted notes that many of the targets of Trump’s criticism have been subject to a barrage of threats and intimidation from his supporters.

The case accuses Trump of plotting with his Republican allies to subvert the will of voters in a desperate bid to cling to power ahead of the attack on the US Capitol by a mob of his supporters on January 6, 2021. The trial will take place in March in Washington federal court, just a few blocks from the Capitol.

Friday’s opinion says that while Trump has a constitutional right to freedom of speech and is a former president and current candidate, “he is also an indicted criminal defendant, and he should be tried in a courtroom under the same procedures that apply to all other defendants.

That, Millett wrote, “is what the rule of law means.

Still, the court took steps to limit the order imposed in October by U.S. District Judge Tanya Chutkan. In addition to barring inflammatory comments about Smith, other attorneys and court staff also limited Trump’s right to target witnesses.

The appellate judges ruled that part of the order was too broad, giving Trump the freedom to talk to or about potential witnesses, including about their books, interviews and political campaigns, provided the comments were not about the potential participation of those people in the investigation or trial or about the content of any expected testimony.

The interest in protecting witnesses from intimidation and intimidation is undoubtedly compelling, but a broad ban on speech that is separate from the role of an individual witness is not necessary to protect that interest, at least based on current evidence, the wrote court.

The opinion says public exchanges with a reasonably anticipated witness about the contents of his forthcoming book are unlikely to intimidate that witness or other potential witnesses weighing whether to come forward or testify truthfully.

The appeals court also said that any comment about court personnel, other attorneys or their family members is off-limits to Trump to the extent it is made with the intent to materially interfere with their work, or with the knowledge that such interference is highly likely to occur. result.

The justices, all appointed by former President Obama or President Biden, both Democrats, had indicated during oral arguments last month that they were inclined to leave the gag order intact, but also limit it.

A major change to the original order is the lifting of the ban on verbal attacks on Smith, who has been a regular target of Trump’s ire since he was appointed by the Justice Department in November 2022 to lead investigations into the former president.

“As a senior government official who exercises ultimate control over the conduct of this prosecution, the special counsel is no more entitled to protection from legitimate public criticism than the institution he represents,” the court wrote.

Trump can still appeal the ruling to the full court or to the Supreme Court. Trump campaign spokesman Steven Cheung claimed in a statement that much of the wildly excessive silence order was deemed unconstitutional.

President Trump will continue to fight for the First Amendment right of tens of millions of Americans to listen to the leading presidential candidate at the height of his campaign, Cheung said.

Judge Chutkan, appointed by Obama, imposed the silence order after a request from prosecutors, who cited Trump’s pattern of incendiary comments, including a social media post that said, “If you come after me, I’ll come after you!” Restrictions were necessary to protect the integrity of the case and protect potential witnesses and others involved in the case from intimidation and threats inspired by Trump’s social media posts.

The silence order has had a back-and-forth through the courts, with the federal court that ruled Friday initially lifting it while considering Trump’s challenge.

Smith, the special counsel, separately charged Trump in Florida with illegally hoarding classified documents at his Mar-a-Lago estate after he left the White House following his 2020 election loss to Biden. That case will be heard in May , although the judge has indicated that it may be postponed.

Trump has denied any wrongdoing and claims the cases against him are part of a politically motivated effort to keep him from returning to the White House.


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