Appeals court upholds Trump’s restraining order in election case, but narrows terms

A federal appeals court on Friday upheld a gag order imposed two months ago on former President Donald J. Trump in the criminal case accusing him of conspiring to overturn the 2020 election, but narrowed the terms to allow him to continue attacking one of his main targets: Jack Smith, the special prosecutor overseeing his federal prosecution.

The battle over the gag order pitted a presidential candidate’s First Amendment rights against concerns that his scathing language could incite his supporters to violence against those involved in the case. Although the US Court of Appeals for the District of Columbia Circuit agreed that the gag order was justified, its revisions gave Mr Trump wider leeway to attack some of the people he has targeted for months.

In its ruling, a three-judge panel tried to strike a careful balance between what it called “two fundamental constitutional values”: the integrity of the judiciary and Mr. Trump’s right to express his opinion.

To that end, the panel kept in place the original gag order measures, restricting Mr. Trump from attacking members of Mr. Smith’s staff or court officials involved in the case. It also retained provisions that allowed Mr. Trump to frame the prosecution as a political vendetta and directly criticize the Biden administration and the Justice Department.

And in one respect, the court expanded the restrictions by adding a measure barring Mr. Trump from commenting on relatives of lawyers or court officials involved in the case if the remarks were intended to interfere with how the trial participants were doing their jobs.

“We do not grant such an order lightly,” Judge Patricia A. Millett wrote for the panel. “Mr. Trump is a former president and a current candidate for president, and there is a strong public interest in what he has to say. But Mr. Trump is also an accused defendant and should be tried in a courtroom under the same procedures that rule over all other defendants. That means the rule of law.”

But the court reduced the gag order in two important ways. In addition to freeing Mr. Trump to pursue Mr. Smith, the prosecution’s public face, it eased a strict restriction against targeting witnesses — allowing Mr. Trump to criticize them if his remarks were unrelated to their roles in the case.

After the judge in the case, Tanya S. Chutkan, first imposed the gag order on Mr. Trump in Federal District Court in Washington in October, Mr. Trump appealed, seeking to strike it down entirely as unconstitutional. As it hinted might happen at oral arguments last month, the appeals panel instead kept its version but changed some of its terms.

The changes to the order mean that Mr Trump can now return to using some of his favorite epithets on social media and refer to Mr Smith, as he has done many times, as a “thug” or a “crazy one”. The changes also mean that Mr. Trump can lash out in a limited way against those of his political opponents who may also testify in the election interference trial, including former Vice President Mike Pence and former Attorney General William P. Barr .

Reached for comment, the Trump campaign issued a statement saying the appeals court had reversed “a huge portion of Judge Chutkan’s wildly overbroad order.” Mr. Trump’s lawyers have vowed to challenge the gag order all the way to the Supreme Court.

The appeals court’s ruling rejected many of the arguments by Mr. Trump’s legal team to lift the gag order entirely, including that all of his remarks were constitutionally protected as political speech, that he could not be held responsible for his listeners’ responses to his speech and that the court could not gag him until it was proved that some harm had occurred.

“Many of former President Trump’s public statements attacking witnesses, litigants, and judicial officers pose a danger to the integrity of these criminal proceedings,” Judge Millett wrote. “This danger is heightened by the predictable stream of threats of retribution and violence that the district court found follows when Mr. Trump speaks strongly against individuals in connection with this case and the implications of the 2020 election on which it focuses the indictment.”

But the original order, she said, “includes more protected speech than necessary,” so the First Amendment requires a narrower tailoring of the restriction.

Judge Millett and her two colleagues on the US Court of Appeals for the District of Columbia Circuit — Judges Cornelia Pillard and Brad Garcia — were appointed by Democratic presidents. Judge Chutkan was also placed on the bench by a Democrat.

Although gag orders are not uncommon in criminal prosecutions, the order imposed in the election interference case led to an important clash. Mr Smith’s prosecutors sought to protect themselves and their witnesses from Mr Trump’s “almost daily” attacks on social media, while the former president claimed the government had tried to censor his “major political speech” while he makes another bid for the White House.

Mr. Trump has often blurred the lines between his criminal cases and his presidential campaign, using court appearances to introduce political themes and using public remarks to attack prosecution as a form of persecution.

Complicating matters, several of his political opponents, including Mr. Pence, are likely to testify against him when the election tampering case goes to trial as early as March.

The appeals court’s ruling means that Mr. Trump’s two gag orders — one in the federal election case and the other in his Manhattan civil fraud case — have now been reinstated after judges temporarily suspended them.

Late last month, a state appeals court in New York reinstated an order barring Mr. Trump from attacking court officials in his civil trial.

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