WASHINGTON (CN) — The D.C. Circuit temporarily paused a gag order in Donald Trump’s election subversion case in Washington Friday night, marking the first time the higher court has opted to weigh in on an issue in the case.
A three-judge panel comprised of U.S. Circuit Judges Patricia Millet, Cornelia Pillard and Bradley Garcia, ordered the temporary freeze after Trump filed a second challenge Thursday night, and they scheduled oral arguments between the ex-president and special counsel Jack Smith on Nov. 20.
The move comes just days after U.S. District Judge Tanya Chutkan reimposed the gag order following her own temporary stay after Trump continued to post the sort of inflammatory comments that led her to impose the order in the first place on Oct. 16.
Chutkan, a Barack Obama appointee, first paused the order on Oct. 20 after Trump filed an appeal arguing that his First Amendment rights were being violated and accusing President Joe Biden of attempting to censor his likely GOP rival in the 2024 presidential election.
Less than a week later, Chutkan lifted the stay after Trump targeted his former chief of staff Mark Meadows in a post on Truth Social, calling him a “coward” and a “weakling” for reportedly taking an immunity deal with Smith to testify before a federal grand jury in Washington. Chutkan noted that, had the order been in place, the post clearly would have violated it.
Trump’s lawyers have argued that such posts cannot be taken as direct threats by Trump, as he does not call for any violence or actions be taken against those he names.
He also should not be held accountable for a crazed supporter interpreting his posts as an order and acting on it, John Lauro, Trump’s lead lawyer in Washington argued during the Oct. 16 hearing regarding the order.
Lauro is likely to make similar arguments before the D.C. Circuit panel, in addition to his primary argument that the order violates the First Amendment by infringing Trump’s free speech in the midst of a political campaign and infringes on the American public’s right to hear from the current GOP frontrunner.
It is unclear how the panel will rule on Trump’s appeal, as he faces three judges appointed by Democratic presidents — Millet and Pillard are Obama appointees while Garcia was appointed by Biden.
The D.C. Circuit has tended to rule along party lines in cases related to the Jan. 6, 2021, Capitol riot, most recently splitting over how to interpret the word “corruptly” in a now-staple charge in the Justice Department’s prosecution of the riot: obstruction of an official proceeding. The charge is one of four brought against Trump in his Washington case, with a similar charge of conspiracy to obstruct an official proceeding.
Two cases brought before the court by Jan. 6 defendants have hinged on whether the word requires the prosecution to prove that the defendants acted with a personal benefit in mind (the defendant’s position) or if they knew their actions were unlawful (the government’s position).
Chutkan’s initial order received surprising criticism from the American Civil Liberties Union, which moved to file an amicus brief in support of Trump, arguing that the order, as it stood, was overly broad and vague.
The civil rights group, which filed over 246 lawsuits against the Trump administration, agreed the order wrongly limited citizens' right to hear from their political candidates but also urged Chutkan to set clear boundaries as to what Trump can and cannot say on the campaign trail.
Smith requested the order in September, warning that Trump’s unique position as a criminal defendant with a massive social media following meant he could use his platform to target potential witnesses likely to give unfavorable testimony and intimidate them.
Chutkan’s order set limits on both Trump and the special counsel, prohibiting inflammatory statements targeted at her court staff, members of the special counsel team and potential witnesses in the case. Violating a gag order can result in fines, a contempt of court charge or imprisonment.
While Trump has so far avoided any consequences stemming from his D.C. gag order, he has since been fined $15,000 for violating a similar gag order in his Manhattan civil fraud trial.
Judge Arthur Engoron imposed the order after Trump reposted an image of Engoron’s court clerk with Senate Majority Leader Chuck Schumer, where Trump called her his “girlfriend” and asserted the photo as proof the case was politically motivated.
Earlier on Friday, Engoron expanded the order to apply to Trump's lawyers in New York.
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