Appeals court upholds Trump’s gag order in election conspiracy case

A three-judge panel found his statements ‘pose a significant and imminent threat’ to the proceedings

A federal appeals court has upheld key parts of a gag order that blocks Donald Trump from attacking witnesses in his election conspiracy case.

The gag order put in place by US District Judge Tanya Chutkan prohibited the former president from launching a “pretrial smear campaign” as he seeks the 2024 Republican nomination for president, the judge wrote in October.

Federal appellate court judges in Washington DC on Friday agreed that some of Mr Trump’s public statements “pose a significant and imminent threat to the fair and orderly adjudication of the ongoing criminal proceeding, warranting a speech-constraining protective order,” but said that the initial order “sweeps in more protected speech than is necessary.”

Mr Trump’s attorneys argued that the order unconstitutionally interferes with his “core political speech” as he runs for president while defending himself from several lawsuits and four criminal prosecutions, including two cases surrounding his alleged attempts to unlawfully overturn the results of the 2020 presidential election.

Friday’s ruling from the US Circuit Court of Appeals in Washington DC prohibits Mr Trump and all parties and their attorneys from “making or directing others to make public statements about known or reasonably foreseeable witnesses”.

It also blocks parties from making public statements about attorneys, members of the court staff and family members “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 interference is highly likely to result.”

However, the appeals court’s ruling notably allows Mr Trump to continue to bash US Department of Justice special counsel Jack Smith, a frequent target of the former president’s attacks.

“We do not allow such an order lightly,” Judge Patricia Millett wrote for the three-judge panel in Friday’s decision.

“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,” according to the order. “But Mr 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. That is what the rule of law means.”

Appellate judges appeared sceptical of arguments from Mr Trump’s attorneys during last month’s hearing, as Justice Department attorneys argued that Mr Trump relies on a “well-established practice of using his public platform to target his adversaries” — inflammatory, derogatory rhetoric aimed at his political rivals, the judges overseeing the cases against him and the prosecutors challenging him, as well as members of their families.

“It creates a world in which public servants will have to decide, ‘Do I want to handle this kind of case … or in doing so will I be threatened, my family be threatened?’ There’s a chilling effect and a pall cast on the whole proceedings,” Justice Department attorney Cecil VanDevender told the court last month. “How likely are you to quit if your family received a death threat?”

Mr Smith’s team described that dynamic in a recent court filing as “part of a pattern, stretching back years, in which people publicly targeted” by Mr Trump are “subject to harassment, threats, and intimidation.”

The former president “seeks to use this well-known dynamic to his advantage,” the filing added, and “it has continued unabated as this case and other unrelated cases involving the defendant have progressed.”

Trump campaign spokesperson Steven Cheung said Mr Trump “will continue to fight for the First Amendment rights of tens of millions of Americans to hear from the leading Presidential candidate at the height of his campaign.”

Mr Trump’s efforts to reverse his loss in the 2020 election yielded four criminal charges in a 45-page grand jury indictment, alleging a multi-state scheme built on a legacy of lies and conspiracy theories to undermine the democratic process. A trial is tentatively scheduled for March 2024.

An appeals court in New York has also rejected Mr Trump’s attempts to overturn a gag order in a separate civil fraud trial in Manhattan, where a trial entering its 11th week could imperil his family’s business and its vast real estate empire.

On Monday, a state appeals court rejected his push for a fast-tracked appeal days before he is scheduled to return to the witness stand. That decision effectively guarantees that Mr Trump will remain under a gag order through the final days of his defence team’s presentations.