A federal appeals court in Washington on Tuesday dismissed Donald Trump's plea to reconsider his appeal against a gag order in the criminal case related to his efforts to overturn the 2020 election results. This marks the latest setback for the former president who is restricted from publicly criticizing certain individuals involved in the legal matter. The only option he has left available if he wants to continue fighting the gag order is to appeal to the Supreme Court.
“Challenging a gag order is very difficult,” Jamie White, an attorney who handles criminal defense and civil rights cases, told Salon.
U.S. District Judge Tanya Chutkan, who is overseeing the criminal case in Washington, imposed a gag order last year restricting Trump from attacking witnesses, specific prosecutors or court staff members. She emphasized that her decision to issue the order was based on evidence revealing that Trump’s public attacks consistently led to threats and harassment. She was using the gag order as a means to safeguard the public's interest in a fair trial. The ex-president has directly targeted Chutkan, special counsel Jack Smith and other prosecutors in his office, as well as potential witnesses in the case. On social media, he referred to Smith as a "thug" and "deranged." Similarly, he has gone after former vice-president, Mike Pence, claiming he had “made up stories” about him and had gone over to the “dark side” by cooperating with prosecutors.
Trump has challenged the order in court since it was issued, arguing that the order violated his First Amendment rights. A federal appeals court in Washington last year narrowed the order, allowing Trump to continue disparaging the Justice Department and the Biden administration. It even allowed him to allege that he believed his criminal prosecution was politically motivated.
“People are certainly entitled to free speech, however, if that speech interferes with the judicial process, or creates threats to individuals within that process, then a person’s freedom of speech is subject to limitations," White explained.
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Courts have “broad discretion,” and in this instance, Trump’s behavior in particular, speaking about the judge’s staff, and some of those comments were argued to be dangerous, “certainly rises to the level of going beyond free speech,” White said.
On Tuesday, a three-judge panel at the DC Circuit largely dismissed his challenge, upholding Chutkan's restrictions. The court specified that Trump could still criticize Smith and individuals involved in post-2020 election matters, provided he refrained from targeting their trial testimony.
Trump then appealed to the entire D.C. Circuit, urging them to step in and reconsider the issue with the goal of further refining or entirely eliminating the order.
In the unsigned order issued on Tuesday, the 11 full-time judges on the court provided no written opinion. The order simply stated that none of the judges had sought a vote on the matter, according to The New York Times.
“The fact that neither the panel nor the full court wanted to review the request means that there were not enough judges in the Circuit that thought Trump's argument had any merit,” Laurie Levenson, a law professor at Loyola Marymount University, told Salon. “It means that the judges really didn't think the initial decision was wrong.”
Trump would have to somehow convince the Supreme Court that the lower court “abused” its discretion and that his First Amendment rights were being denied because the gag order was either “unjustified or too broad,” Levenson explained. He would have to show how the lower courts' rulings conflicted with rulings of the Supreme Court or other circuits. “I think the Supreme Court will take into account the underlying issues, but I don't think that they will give extra weight to his status as an ex-President,” she added.
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To the extent Trump argues that he needs to speak more because he is a political candidate, the court may consider that fact, but it does not necessarily mean he will get a review, Levenson said.
The rejection of the former president’s appeal is not a “surprise” though, David Schultz, professor of political science at Hamline University, told Salon. Rarely do courts take appeals while a lower court is still hearing a case. Instead, they defer to the judge and let a defendant raise the question on appeal.
A three-judge panel of the same appeals court is expected to soon decide on Trump's attempt to dismiss the federal election interference case based on a claim of presidential immunity. His team argues that he should be shielded from prosecution since his actions were within the “outer perimeter” of his official responsibilities as president to “ensure election integrity” when he questioned the results of the election.
“I don't think the Supreme Court would be eager to jump into this issue,” Levenson said. “It has plenty of high-profile cases before it at this time, including those involving Trump.”
The Supreme Court is already under intense pressure to resolve the issue of whether Trump can be disqualified from holding public office under the 14th Amendment’s insurrection ban. They have to decide if Trump can be removed from Colorado's ballot.
The arguments that Trump intends to make to the Supreme Court to appeal the gag order have to be “novel,” White said. The ex-president would not be able to re-litigate the same arguments, and his attorneys would have to present arguments that suggest the circuit court got this “completely wrong.”
Trump’s lawyers would have to argue that decisions made, “at all levels up to that point,” have been “illegal or unconstitutional.” They’re going to have a very difficult time presenting anything credible, and it’s "very likely" the court will not hear the issue on the gag order.
"I think the issue of immunity is clearly something that they would hear, because for the most part, they haven’t dealt with that as it pertains to an American president,” White said. “But the idea that the judge is able to say ‘Mr. Trump is not able to speak about this case’ happens a lot, and it’s been litigated time and time again, so it’s not shocking in any way that this has been a losing argument from day one, and I think it will continue to be a losing argument. The judge has an obligation to control his courtroom and protect his staff and the integrity of the process.”
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