The Gutted Gag Order

by Julie Kelly

If one relied only on headlines, one would believe the recent appellate court ruling that kept intact the framework of Judge Tanya S. Chutkan’s unprecedented gag order on the presumptive Republican nominee for president is a big defeat for Team Trump. News outlets reported that the three-judge panel upheld “most” of Chutkan’s order and focused on the decision’s inflammatory language about the former president’s social media habits.

“The decision against Trump is a striking admonishment for an ex-president facing an upcoming criminal trial,” CNN reported on December 8 after the decision was released. “Trump gag order in 2020 election case largely upheld by appeals court,” ABC News claimed.

A closer read of the 68-page opinion, however, reveals sharp criticism of Chutkan and Special Counsel Jack Smith while paring back major elements of the order, which Trump appealed last month. On balance, and contrary to the media’s portrayal, the decision represents a humiliating smackdown of both the court and the prosecution.

In August, Smith announced a four-count indictment against Trump related to the events of January 6 and alleged attempts to “overturn” the 2020 election; the following month, Smith demanded a wide-ranging court order to silence the defendant by asking Chutkan to prohibit Trump from saying mean things about a long list of individuals—including Smith himself.

Following a contentious hearing in October—a copy of the transcript can be found here—Chutkan issued the gag order, which prevented Trump from making public statements against the special counsel, court personnel, and some of his fiercest critics including Mark Milley, the former chairman of the joint chiefs of staff, and former Vice President Mike Pence under the excuse the men could be called as government witnesses during Trump’s trial.

But three judges on the appellate panel, all appointed by Democratic presidents, didn’t agree. Further, while Chutkan insists she will not consider Trump’s run for the presidency as a factor in court proceedings, her colleagues did:

“By broadly proscribing any statements about or directed to the Special Counsel and the court’s and counsel’s staffs, as well as reasonably foreseeable witnesses or their testimony, the Order sweeps too broadly. Mr. Trump, it bears noting, is simultaneously a criminal defendant and a political candidate for the Republican presidential nomination. Under the court’s Order, his opponents could without restriction wield the indictment and evidence in the case to demonstrate his unfitness for office. Permitting Mr. Trump to answer such political attacks with only an anodyne ‘I beg to differ’ would unfairly skew the political debate while not materially enhancing the court’s fundamental ability to conduct the trial. As Mr. Trump points out, some of those same individuals also have written books about their work in his administration and have given interviews that Mr. Trump views as unfavorable. Mr. Trump has a First Amendment interest in publicly debating those individuals’ commentaries in a way that is independent of and disassociated from any role they might have in the trial. Yet the Order would proscribe such speech because it would speak about someone who is a reasonably foreseeable witness, even if Mr. Trump’s speech would have nothing to do with their witness role or the possible content of any testimony.”

The panel also removed Smith as a protected party in the gag order. “As a high-ranking government official who exercises ultimate control over the conduct of this prosecution, the Special Counsel is no more entitled to protection from lawful public criticism than is the institution he represents.” (Chutkan’s order allowed Trump to publicly criticize the Department of Justice. How generous!)

In an apparent swipe at Smith’s running-to-the-teacher act, the panel reminded the prosecutor largely portrayed as a tough guy in the media how “working in the criminal justice sphere fairly requires some thick skin.”

And contrary to media’s description of the order as “narrow,” the judges determined Chutkan’s order represented overreach that crossed into First Amendment territory. “The district court’s order…sweeps in more protected speech than is necessary.”

Of course, the judges provided plenty of anti-Trump talking points for reliable regime mouthpieces to spout on cable news. Citing a few instances raised by Smith where Trump’s comments resulted in legitimate threats against his so-called “targets,” the panel agreed with Chutkan’s assessment that “Trump’s public statements pose a significant and imminent threat to the fair and orderly adjudication of the ongoing criminal proceeding.”

A record of Trump’s online behavior, the judges concluded, “amply” proved that some individuals were “consequently threatened and harassed” following his public statements. The order cited alleged threats made against Judge Arthur Engoron and his clerk in New York Attorney General Leticia James’ fraud case against Trump as one piece of evidence.

In the end—after warning about Trump’s danger to the “integrity” of a court proceeding that involves a history-making criminal indictment brought by a Democratic administration and handled by a Democratic judge that will go before a jury selected from residents living in one of the most heavily-Democratic cities in the country—the panel pared back Chutkan’s directive. Trump and his attorneys are prohibited 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” (emphasis added), which drastically curtailed Chutkan’s general ban on any statements aimed at potential witnesses.

A slight tweak was also made to the remaining parties: Trump cannot make public statements about special counsel staff excluding Smith, any court employees, and their family members if the comments are intended to “interfere” with the case.

Trump’s lawyers announced they planned to take the remaining portion of Chutkan’s order to the Supreme Court. But at least for now, Team Trump can savor this rare rebuke of Smith and Chutkan—both of whom deserve this and so much more.

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