DC Circuit reinstates narrowed gag order in Trump election subversion case

WASHINGTON (CN) — A D.C. Circuit panel reinstated the gag order imposed in former President Donald Trump’s election subversion case on Friday, affirming key parts of the federal judge’s initial order while carving out room for looser restrictions on Trump’s campaign speech.

U.S. Circuit Judge Patricia Millet wrote in the panel’s unanimous opinion that the three-judge panel approved the protections for potential witnesses, court staff, prosecutors and their families. 

The decision specifically excludes special counsel Jack Smith from those protections, a change from U.S. District Judge Tanya Chutkan’s initial order, allowing Trump to lambast Smith along with President Joe Biden and the Justice Department as he wishes.

Trump may still choose to appeal this decision a final time to the Supreme Court, where the court is dominated by six conservative judges, three of whom he appointed.

In her opinion, Millet acknowledges the “two paramount constitutional interests” present in the case: Trump’s First Amendment right to free speech, especially free political speech, and the importance of protecting his criminal proceeding from that speech.

“The First Amendment unquestionably affords political speech robust protection,” Millet wrote. “But there is another fundamental constitutional interest at stake here. 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.” 

Prosecutors initially requested the order and for it to be reinstated over concerns that Trump could use his social media platforms to target prosecutors, court staff or witnesses and encourage his followers to interfere with his criminal proceeding, potentially with violence.

Chutkan, a Barack Obama appointee, imposed the order on Oct. 16, soon after a similar order was placed in New York as part of Trump’s Manhattan civil fraud trial. The judge in that case, Arthur Engoron, placed the order after Trump reposted a photo of Engoron’s court clerk with Senate Majority Leader Chuck Schumer calling her Schumer’s “girlfriend.”

The order — and a second one imposed in the case — have since been reinstated by a New York appeals court. 

In Washington, a panel including Millet and U.S. Circuit Judges Cornelia Pillard and Bradley Garcia grilled Trump and government lawyers during marathon oral arguments in November. 

The panel of Democrat appointees seemed to partially accept Trump lawyer John Sauer concern that the order was overly broad and infringed voters' right to hear from their presidential candidates. 

But the panel sought to create clear boundaries as to what Trump could say publicly under the gag order, like on the debate stage, rather than accept Sauer’s claims that everything Trump said was “core political speech” and strike down the order. 

While questioning special counsel lawyer Cecil VanDevender, Millett tried to outline those boundaries, asking whether Trump could call a critic on the debate stage “a liar” if they were a potential witness, which VanDevender resisted.

With Friday’s decision, Millett clarifies that Trump is allowed to call a critic a liar. 

“Mr. Trump, it bears noting, is simultaneously a criminal defendant and a political candidate for the Republican presidential nomination … the order would allow Mr. Trump to respond only by ‘asserting that [he] is innocent,’” Millet wrote. “Permitting Mr. Trump to answer such political attacks with only an anodyne ‘I beg to differ’ would unfairly skew the political debate while not materially enhancing the court’s fundamental ability to conduct the trial.”

In a statement, Trump campaign spokesman Steven Cheung applauded the panel’s ruling. 

“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 broad gag order was unconstitutional,” Cheung wrote Friday.

Follow @Ryan_Knappy

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