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The U.S. Circuit Court of Appeals for the D.C. District on Dec. 8 upheld a gag order against former president Donald Trump, though the court narrowed it. The gag order was issued in the criminal case in which Trump is accused of conspiracy in trying to overturn the 2020 election results in which he lost. The appellate court weighed First Amendment speech rights with the right to a fair administration of justice. The gag order limits what Trump can say about potential witnesses or other participants in the trial.

The U.S. Court of Appeals for the D.C. District in U.S. v. Trump (No. 23-3190) upheld most parts of a gag order on former president Donald Trump in a criminal case in which he is charged with conspiring to overturn the 2020 presidential election results.

The 68-page decision on Dec. 8, 2023, weighed Trump’s First Amendment-protected speech rights against the need for fair administration of justice and was written by Judge Patricia A. Millett on behalf of a three-judge panel. 

U.S.  District Judge Tanya S. Chutkan had issued a gag order on Trump after he made comments about witnesses and other trial participants. While permitting Trump to criticize her, Judge Chutkan had limited what Trump could say about potential witnesses or other participants in the case and had, in a part of the ruling to which Trump had agreed, limited his communication with witnesses “except through or in the presence of counsel.”

Appeals court upholds gag order against Trump in criminal trial

In its Dec. 8, 2023, decision, the appeals court upheld the gag order “to the extent it prohibits all parties and their counsel from making or directing others to make public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding.”

Miller further affirmed the lower court’s order “to the extent it prohibits all parties and their counsel from making or directing others to make public statements about — (1) counsel in the case other than the Special Counsel, (2) members of the court’s staff and counsel’s staffs, or (3) the family members of any counsel or staff member — if those statements are made with the intent to materially interfere with, or to cause others to materially interfere with, counsel’s or staff’s work in this criminal case, or with the knowledge that such interferences is likely to result.” 


Miller reviewed a long series of statements that Trump had spoken or posted with respect to potential witnesses in the case, from high federal governmental officials to state election workers. This had included a posting that “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” as well as many derogatory remarks against the judge, the prosecutor, and their family and staff members.

The district judge had issued a gag order both to avoid witness intimidation and to protect individuals from threats and harassment. Although the circuit court had stayed the order on Nov. 3, it had expedited an appeal, and reasserted its jurisdiction in the case.

Trump’s speech rights can be limited to protect fair trial, court said

The appellate court recognized that two fundamental rights were in potential conflict, namely, the rights of freedom of speech and to the fair administration of justice. It frequently cited the case of Sheppard v. Maxwell (1966) as an example of where courts needed to control courtroom proceedings to protect the fair administration of justice. The court noted the special importance that freedom of speech plays in a democratic republic, where people elect those who will govern them. Recognizing that Trump also had the right to a fair trial, it observed that he did not have the right to “a trial prejudiced in his favor.” 

Noting that orders “restraining speech about an ongoing criminal proceeding are presumptively unconstitutional,” the appellate court observed that any such prior restraints must be “narrowly tailored” and should come only when less restrictive alternatives were unavailable. It noted, however, that courts had greater authority over the conduct and speech of participants in a criminal trial than over the press or outside entities reporting on what transpired during court proceedings. It specifically observed that lawyers were, in such cases, acting in part as “officers of the court.”

Because Trump’s trial involved matters of public concern and because he was running for the Republican nomination for president, the appellate court recognized that the only restraints it could impose involved those that represented “a significant and imminent threat to the administration of criminal justice.” It rejected Trump’s arguments that it could only act if his speech posed a “clear and present danger” to the trial process. 

Record shows Trump attacked trial participants with threats

A review of the record demonstrated that “Mr. Trump has repeatedly attacked those involved in this case through threatening public statements, as well as messaging daggered at likely witnesses and their testimony.” It further noted that many of Trump’s verbal attacks had resulted in “a torrent of threats and intimidation from his supporters.” The printed ruling for the public came with the notice that “Sealed Information [was] Deleted,” and the court blacked out the names of the individuals who had been subject to verbal attacks to prevent further damaging them.

The appellate court observed that Congress had “expressly authorized courts to prevent defendants from communicating with witnesses.” It noted that in some cases, statements made by social media could result in intimidation similar to that of direct speech and therefore observed that “the district court had the authority to prevent Mr. Trump from laundering communications concerning witnesses and addressing their potential trial participation through social media postings or other public comments.” 

Courts must act to prevent ‘atmosphere of fear or intimidation’

The lower court judge thus had “a duty to act proactively to prevent the creation of an atmosphere of fear or intimidation aimed at preventing trial participants and staff from performing their functions within the trial process.”

The appellate court rejected the idea that because Trump was participating in Republican primaries, anything he said was protected political speech. It also rejected the idea that trial proceedings should be delayed during election contests, which are scheduled throughout the coming year, noting that a delay might thwart the timely administration of justice. 

Court: Gag order swept too broadly, needed to be tailored

Having acknowledged the right to limit Trump’s speech to, or about, certain witnesses, the appellate court thought that the lower court ruling had swept too broadly and needed to be more narrowly tailored.

Specifically, Trump had the right to speak about other public figures with whom he was associated and who might testify in his case, some of whom had written books critical of him, and some of whom had rival policy views. The court thus ruled that instead of gagging all speech that “targets” known or potential witnesses, the court “must focus more directly and narrowly on comments that speak to or are about those persons’ potential participation in the investigation or in this criminal proceeding.” It explained that this “allows the former President to continue to speak out about those same person’s books articles, editorial, interviews, or political campaigns as long as he does so in a manner that does not concern their roles as witnesses or the content of any expected testimony.” 

Statements about witnesses should occur in court, court said

Aware of Trump’s unique megaphone as an ex-president and candidate for office, the court sought to avoid trial by social media. The court observed that “an order restricting communications concerning individuals’ roles as witnesses in a criminal proceeding does not close the door to such speech. It instead relocates such commentary to the courtroom, where the content and credibility of witnesses can be challenged through the time-tested crucible of examination and cross-examination ‘in the calmness and solemnity of the courtroom according to legal procedures.’” Recognizing that the judge would have to examine statements within context, the court believed that the standard was not unconstitutionally vague and that it offered “sufficient warning” as to the kinds of conduct it was restricting. 

The appellate court recognized that speech about the criminal justice system remained vital. It thus ruled that the lower court order prohibiting all public statements that target prosecutors or court staff went too far.

Judges and special counsel were subject to the same kind of criticisms as the institutions that they represented. The court thus required a showing of mens rea, or conscious intent to interfere with court proceedings, before the gag order could limit such speech about them. 

Acknowledging that “Mr. Trump is a former President and current candidate for the presidency, and there is a strong public interest in what he has to say,” the court also recognized that Trump “is also an indicted criminal defendant, and he must stand trial in a courtroom under the same procedures that govern all other criminal defendants.” It ended its decision by saying that, “This is what the rule of law means.”

Although this decision relates to a gag order specifically in the criminal prosecution of Trump for electoral interference, the reasoning would also apply to other civil and criminal proceedings in which he is currently involved. 

John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. This article was published on Dec. 11, 2023.

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