The U.S. Court of Appeals for the District of Columbia has refused to hear former President Donald Trump’s en banc appeal of an earlier appellate court ruling regarding a gag order that has been imposed on him in the case involving his attempts to overturn the 2020 presidential election.
En banc proceedings involve an entire circuit appeals court reviewing a prior three-judge ruling from within its ranks. Last month, Trump lost an appeal to such a three-judge court within the D.C. Court of Appeals after judges found that a gag order was properly placed on him by Judge Tanya Chutkan, the federal judge overseeing his election subversion case.
In a short order from the full en banc appeal, the language used by the judges indicated that none of the 11 members of the district court deemed Trump’s First Amendment speech claims credible enough to warrant lifting the gag order.
“Upon consideration of appellant’s petition for rehearing en banc, the response thereto, and the absence of a request by any member of the court for a vote, it is ordered that the petition be denied,” the order issued on Tuesday reads.
Chutkan’s original gag order was made in October to limit Trump’s ability to make statements intimidating prosecutors, court officials, court employees and named or potential witnesses in the case, either on social media or during in-person statements. Trump appealed, and in November a three-judge panel agreed with Chutkan’s reasoning, making special note of the fact that Trump’s history indicated that he couldn’t be trusted to adjust his behavior on his own.
“Why does the district court have to wait and see, and wait for the threats to come, rather than taking a reasonable action in advance?” Judge Brad Garcia, one of the members of that three-judge panel, asked at the time.
The appeals court was unanimous in its decision to keep Chutkan’s order in place.
“Mr. Trump’s documented pattern of speech and its demonstrated real-time, real-world consequences pose a significant and imminent threat to the functioning of the criminal trial process in this case,” the order from last month read.
Following the en banc order, Trump’s only recourse to get the gag order lifted is to appeal to the U.S. Supreme Court. Trump perhaps has better odds to win on appeal at the nation’s highest court due to its 6-3 conservative majority; three of the justices in that conservative bloc are Trump appointees, with a fourth member of the bench, Justice Clarence Thomas, repeatedly indicating his fealty to the former president.
But the Supreme Court, even with this majority, has dismissed Trump’s assertions in the past, including in the other federal case he’s facing involving his improper retention of classified materials after leaving office. In short, a favorable ruling from the Court is not necessarily a given.
The Court’s ruling could indicate how justices will eventually rule in the election subversion case — and whether the Supreme Court will be sympathetic to Trump in future appeals.
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