Trump files appeal with D.C. Circuit Court to overturn Judge Chutkan's gag order

November 3, 2023
Ben Marquis

The district court judge presiding over former President Donald Trump's prosecution for challenging the 2020 election results imposed a gag order on him that limits his ability to speak publicly and critically against the court, prosecutors, and potential witnesses.

Trump's attorneys have now filed an appeal of that order to the D.C. Circuit Court on the basis of it being an unconstitutional violation of his First Amendment-protected free speech rights, The Hill reported.

The filing urged the circuit court to move swiftly on the matter within the next week and provided notice that, if necessary, Trump was prepared to appeal the issue of the gag order to the Supreme Court.

Gag order imposed by district court judge

D.C. District Judge Tanya Chutkan actually first issued the gag order to limit former President Trump's speech in mid-October, at the urging of Special Counsel Jack Smith's prosecutors, but then imposed a temporary administrative stay that blocked it from taking effect while she considered arguments in opposition to the order from the defense attorneys.

On Sunday, however, following critical statements Trump had made about a potential witness against him, former White House Chief of Staff Mark Meadows, and Special Counsel Smith, the judge decided to reject the defense's First Amendment arguments and lifted her own stay so that the gag order could go into effect, due to her determination that Trump's social media post had engaged in the sort of "targeting" that her order, had it already been in effect, would have prohibited.

"As the court has explained," Chutkan wrote in the nine-page order, "the First Amendment rights of participants in criminal proceedings must yield, when necessary, to the orderly administration of justice -- a principle reflected in Supreme Court precedent, the Federal Rules of Criminal Procedure, and the Local Criminal Rules."

"And contrary to Defendant’s argument, the right to a fair trial is not his alone, but belongs also to the government and the public," she continued. "Defendant’s repeated appeals to broad First Amendment values, therefore, ignore that the court -- pursuant to its obligation to protect the integrity of these proceedings -- recognized those values but, in balancing them against the potential prejudice resulting from certain kinds of statements, found them outweighed."

Gag order violates First Amendment in multiple ways

In a 35-page appeal of Judge Chutkan's ruling to the D.C. Circuit Court, Trump's attorneys wrote, "No court in American history has imposed a gag order on a criminal defendant who is actively campaigning for public office -- let alone the leading candidate for President of the United States. That centuries-long practice was broken on October 17, 2023, when the district court entered its Opinion and Order, muzzling President Trump’s core political speech during a historic Presidential campaign."

They noted that no evidence of any "actual or imminent threat" to justice had been presented to justify the gag order and that the prosecution had even acknowledged such harm was "speculative" in nature.

"Based [on] this speculation, the district court entered a sweeping, viewpoint-based prior restraint on the core political speech of a major Presidential candidate, based solely on an unconstitutional 'heckler’s veto,'" the motion continued. "The Gag Order violates the First Amendment rights of President Trump and over 100 million Americans who listen to him."

It was further explained that the "targets" of Trump's criticisms were "high-level government officials and public figures, many of whom routinely attack President Trump in their own public statements, media interviews, and books," and whom Trump should be free to counter with his own speech.

"President Trump’s viewpoint and modes of expression resonate powerfully with tens of millions of Americans. The prosecution’s request for a Gag Order bristles with hostility to President Trump’s viewpoint and his relentless criticism of the government -- including of the prosecution itself," the motion argued. "The Gag Order embodies this unconstitutional hostility to President Trump’s viewpoint. It should be immediately stayed."

Request for swift ruling or time for an appeal to the Supreme Court

After more thoroughly laying out the arguments and citing numerous precedents for why the district court's gag order should be lifted, the filed appeal stated, "President Trump respectfully requests that the Court enter a temporary administrative stay pending resolution of this motion and issue its ruling by November 10, 2023."

"If the Court denies this motion, President Trump requests that the Court extend its administrative stay for seven days to allow him to seek relief from the U.S. Supreme Court," the filing added.

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