December 8, 2023
No. Former President Trump can’t just say whatever he wants when it comes to his criminal federal election interference case. And yes – the gag order will stand – with a slight modification.
So says the d-c federal appeals court in this 68-page ruling issued today.
I know there are a lot of cases to keep track of so let me clarify which one I’m talking about. This is the federal election interference case bring brought by special counsel Jack Smith in Washington DC federal court. Back in October the judge in that case Tanya Chutkan issued what’s called a limited gag order saying the former President could say whatever he wanted about the case, the Department of Justice, the President and the judge publicly but he could not publicly attack or talk about witnesses involved in the case or potential witnesses involved in the case nor could he talk about or publicly attack Special Counsel Jack Smith, his family or the court staff.
Trump appealed and a three judge panel of the DC appellate court heard the case. Late last month the panel heard oral arguments from the former President’s legal team saying the gag order violates Trumps First Amendment rights. Today the Appeals Court said no and decided instead to uphold the gag order issued by Judge Chutkan with one small change – the former President will not be restricted from talking about Jack Smith –everyone else in the original gag order is still off limits.
The appellate judges said in today’s ruling that they had to balance two constitutional rights – the right to free speech and the right to a fair trial through the court’s responsibility to ensure the fair administration of justice. They said “like any other criminal defendant, Mr. Trump has a constitutional right to speak… also like any other criminal defendant, Mr. Trump does not have an unlimited right to speak. And according to Supreme Court precedent – free speech “could be restricted if it posed a “substantial likelihood of material prejudice” to the integrity of the proceedings.”
They said trump’s legal team was wrong in their argument about why trump’s free speech rights should outweigh the right to a fair trial saying “Mr. Trump raises three objections to any regulation of his speech at all. None holds up.”
It is likely the former president will appeal this ruling again – and it’s possible the Supreme Court could ultimately hear this.
Read the DC Appeals Court ruling here.
