A federal appeals court on Tuesday declined an effort by former President Trump to have his challenge to a gag order in his election interference case heard by the full court, teeing up a likely Supreme Court battle over restrictions to his speech.
A three-judge panel of the District of Columbia Circuit Court of Appeals had largely upheld a lower court ruling restricting Trump’s speech in the case.
That decision largely affirmed a prior ruling from Judge Tanya Chutkan, who barred Trump from making statements that “target” foreseeable witnesses, court staff and prosecutors.
The appeals court refined that directive, barring Trump from any statements “made with the intent to materially interfere with, or to cause others to materially interfere with” the course of the case.
The D.C. Circuit’s refusal to rehear the case is likely to bring the issue to the Supreme Court next. Trump could petition the justices to review the gag order and also ask them to put it on hold in the meantime.
It is one of multiple battles in Trump’s many legal cases that has been barreling toward the justices. Already, the Supreme Court took up an appeal of a ruling kicking him off Colorado’s ballot under the 14th Amendment’s insurrection ban. Oral arguments are less than three weeks away.
Agreeing to review Trump’s gag order, however, would mark the justices’ first intervention in any of Trump’s four criminal cases since he was charged.
Also, they could soon be forced to confront another battle in Trump’s federal election criminal case: whether he has criminal immunity from official acts during his presidency.
The Supreme Court declined special counsel Jack Smith’s request to leapfrog the normal appeals process to immediately decide Trump’s immunity, which would’ve made it easier for Trump to go to trial earlier, instead allowing it to progress through the D.C. Circuit.
But the gag order battle has now completed that process, making the Supreme Court the next avenue for Trump to appeal. The Hill has reached out to Trump’s legal team for comment.
The circuit court panel took issue with Chutkan’s use of “target,” fearing it could restrict Trump from responding to those who may be both witnesses in the case, as well as campaign critics.
Their standard, the judges wrote, “allows the former President to continue to speak out about those same persons’ books, articles, editorials, interviews, or political campaigns as long as he does so in a manner that does not concern their roles as witnesses or the content of any expected testimony.”
They also removed Smith from the list of protected figures under Chutkan’s order, freeing Trump to make more pointed statements about the top prosecutor on the case.
But the bulk of the 68-page ruling backs Chutkan’s rationale behind imposing a gag order, backing her conclusions that Trump’s speech could disrupt the case, chill witness participation, and inspire real threats and intimidation for those involved in the case, while also concluding his candidate status does not outweigh the need to protect the trial.
“Mr. Trump’s documented pattern of speech and its demonstrated real-time, real-world consequences pose a significant and imminent threat to the functioning of the criminal trial process in this case,” the court found.
The judges cited the “torrent of threats and intimidation” leveled at those Trump singles out by way of his supporters, writing some messages are designed to “generate alarm and dread.”
The decision also noted that Trump’s attorneys were not able to counter that his speech motivates attacks from his followers.
“Mr. Trump has not shown that factual finding to be clearly erroneous, and we hold that the record amply supports it,” they wrote.
Updated 1:07 p.m.
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