Former President Donald Trump is planning to appeal a recently issued gag order against him by the judge overseeing the federal criminal trial involving his efforts to overturn the 2020 presidential election.
The gag order on Trump, issued by Judge Tanya Chutkan, forbids him and other “interested parties” in the trial from making public statements that target special counsel Jack Smith or his staff, or any court staff and supporting personnel. The order also forbids the same kind of rhetoric made against “any reasonably foreseeable witness or the substance of their testimony.”
Prosecutors had sought a limited gag order against Trump over his numerous social media postings that mocked Smith and derided Chutkan. The rhetoric Trump used was deeply alarming, special counsel lawyers alleged, and could result in tainting a potential jury pool or influencing otherwise agreeable witnesses in the trial into not cooperating, out of fear of being on the receiving end of Trump’s ire.
Chutkan largely agreed with prosecutors’ arguments, and on Monday issued a gag order against Trump. On Tuesday, a formal order was published, stating that Trump’s jabs against prosecutors and other elements of the trial posed “sufficiently grave threats to the integrity of these proceedings that cannot be addressed by alternative means.”
Citing federal precedent dating back several decades, the order notes that the Supreme Court has long established that judges must protect trial processes “from prejudicial outside interferences.” Trump’s lawyers’ arguments, that a gag order would hamper his First Amendment speech rights as he seeks to win the presidency in 2024, weren’t sufficient enough to warrant dismissing the prosecutors’ requests, Chutkan added.
“The First Amendment does not override that obligation” to protect the trial from negative influence, Chutkan wrote in her order, adding that, “in order to safeguard the integrity of these proceedings, it is necessary to impose certain restrictions.”
Chutkan also noted that Trump, since his indictment, “has continued to make similar statements attacking individuals involved in the judicial process, including potential witnesses, prosecutors, and court staff.”
“The defense’s position that no limits may be placed on Defendant’s speech because he is engaged in a political campaign is untenable, and the cases it cites do not so hold,” Chutkan elaborated in her order, noting that court precedent “recognize[s] that First Amendment rights must yield to the imperative of a fair trial.”
Importantly, Chutkan said that Trump would still be able to use his First Amendment speech rights, even with her limited gag order imposed on him. The former president is still allowed to criticize the government in a general manner, including the Justice Department, and can even still insist that the charges against him are politically motivated.
That didn’t stop Trump from complaining soon after the order was given on Truth Social.
“Today a judge put on a gag order. I’ll be the only politician in history that runs with a gag order where I’m not allowed to criticize people,” Trump said.
“We’ll appeal it and we’ll see. But it’s so unconstitutional,” he asserted in the same posting.
On Tuesday, shortly after Chutkan’s order was officially published, Trump’s lawyers followed up on his promise, filing a “notice of appeal” brief to the court indicating their intention to challenge the gag order.
Gag orders such as these, imposed in order to prevent certain actors — be they lawyers, witnesses, defendants or others — from influencing the outcome in a trial are not uncommon, and are not a violation of one’s free speech rights.
According to Cornell Law School’s Legal Information Institute, a “gag order” is when “a judge prohibits the attorneys, parties, or witnesses in a pending lawsuit or criminal prosecution from talking about the case to the public.”
Such orders aren’t handed out without deep consideration for a person’s First Amendment speech rights — per Supreme Court precedent, before issuing gag orders, courts must consider pretrial news coverage, and whether other actions could “mitigate the effects of unrestrained pretrial publicity.” Courts must also consider how effective a gag order would be in preventing possible dangers that could come about without such an order being issued.
The gag order that Chutkan issued seems to add to the original conditional release order Trump was given when he was first charged. In that order, the former president was informed he could be placed behind bars if he violated any local, state or federal crime, including using his rhetoric to “influence a juror or try to threaten or bribe a witness or retaliate against anyone” involved in the case. He also was disallowed from discussing the case with any witness without his attorneys present.
Trump at that time said he understood the conditions being placed on him.
Even though he has filed a notice of appeal for the gag order issued this week, Trump will still be forbidden from making the kind of comments Chutkan specified, at least until she or a higher court decides whether to place a stay on her order.
“Just filing a notice of appeal doesn’t give him a free card to do and say whatever he wants,” MSNBC contributor and legal expert Katie Phang said on social media.
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