DC Circuit rejects Trump’s en banc request over gag order in election subversion case

WASHINGTON (CN) — Donald Trump can't ask a full D.C. Circuit Court of Appeals bench to rid him of the gag order imposed in his federal election subversion case, the circuit ruled Tuesday.

Trump will likely appeal the decision to the Supreme Court. He argues the order is an attempt to stifle his First Amendment rights on the campaign trail and that it strips voters of the right to hear from the leading GOP candidate. 

In the brief order, the court indicated that none of the 11 judges on the bench requested a vote on Trump's en banc petition, leading to their ultimate rejection.

During November 2023 oral arguments in front of a three-judge panel, Trump’s appellate attorney, John Sauer of the firm James Otis, said the gag order wrongly positioned U.S. District Judge Tanya Chutkan as “a filter” between Trump and voters. 

U.S. Circuit Judges Patricia Millet, Cornelia Pillard and Bradley Garcia, each appointed by Democratic presidents, were willing to accept the need for a looser gag order to allow Trump to comment on the public figures involved in his case, like special counsel Jack Smith. 

But a unanimous Dec. 9, 2023, opinion penned by Millet reinstating the newly tailored gag order made clear that Trump should not have free reign to say whatever he wished. 

The Obama appointee wrote that while the First Amendment does carve out room for “insulting and even outrageous speech,” it affords no protection for defamatory, inciting or threatening comments.

“In addition, even protected speech may, and sometimes must, be regulated when necessary to protect a compelling government interest, including the fair administration of a criminal trial,” Millet wrote.

Under the tailored version of the order, Trump can publicly lambast Smith, President Joe Biden and the Justice Department, but cannot target potential witnesses, court staff, prosecutors and their families. 

Trump’s rhetoric, particularly in the early stages of the case, raised questions as to how Chutkan could find a balance between treating Trump like a criminal defendant — imposing the restrictions to one’s speech that come with that status — and like a presidential candidate. 

Just one day after he appeared in federal court in Washington to plead not guilty to the four charges levied against him by Smith, he posted an apparent threat on his Truth Social account. 

“IF YOU GO AFTER ME, I’M COMING AFTER YOU!” Trump posted on Aug. 4, 2023. 

The following day, Chutkan received a racist death threat to her chambers from a Texas woman who told her, “You are in our sights, we want to kill you.”

Since the start of the case, Chutkan has received increased security around the E. Barrett Prettyman Courthouse in Washington. 

Trump has continued to rail against perceived enemies throughout his many court cases, notably targeting a court clerk of Judge Arthur Engoron in his Manhattan civil fraud trial. That prompted Engoron to hit Trump with his first gag order; a second soon followed. 

During closing arguments in the Manhattan case on Jan. 11, Trump in a defiant courtroom statement called the case a “political witch hunt,” lambasted New York Attorney General Letitia James and accused Engoron of having his “own agenda.” 

He also made an appearance at jury selection last week in a civil defamation case brought by writer E. Jean Carroll over statements where he denied sexually assaulting her and saying he never met her. 

Trump could be heard muttering “witch hunt” within earshot of the jury, leading U.S. District Judge Lewis Kaplan to threaten to throw him out of the courtroom. 

In his Fulton County, Georgia, election subversion case, where he is accused of interfering in the state’s 2020 presidential election, Trump has begun taking advantage of an allegation by co-defendant Mike Roman that a romantic relationship between District Attorney Fani Willis and the lead prosecutor should disqualify them from the case. 

In campaign speeches and on social media, Trump has begun referring to Willis and special prosecutor Nathan Wade as “the lovebirds” and accusing them of misusing funds to “ENRICH themselves and live the Lifestyle of the Rich and Famous.” 

Trump has thus far taken a more subdued approach in his Washington case. He made his second appearance in court during another pair of oral arguments before the D.C. Circuit over his presidential immunity claim. 

But his disruptive behavior, a clear attempt to use his legal troubles to boost his support among GOP voters who view the cases as political persecution, raises concerns for a looming trial in Washington, which is expected to be his most consequential. 

Smith has sought to prevent Trump from making the trial — scheduled to begin March 4, 2024, but likely to be delayed — a campaign rally. He filed a motion last month to bar Trump from introducing “irrelevant information.” Chutkan has yet to rule on it as the case remains on hold.

According to a recent Harvard CAPS-Harris poll, a conviction in Washington could hurt his reelection chances, with Trump losing a head-to-head matchup with Biden 52% to 48%. 

Follow @Ryan_Knappy

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