The U.S. Court of Appeals for the District of Columbia Circuit has denied former President Donald Trump’s request for a rehearing in the appeal of his federal gag order.
A panel of three judges issued the order on Jan. 23. President Trump had also requested the appeal be heard by the whole bench of 11 judges, but that was also denied.
“Upon consideration of appellant’s petition for panel rehearing filed on December 18, 2023, and the request for administrative stay, it is ORDERED that the petition be denied,” it reads.
Prosecutors had argued against President Trump’s petition for a rehearing, stating it was “unwarranted” because he did not show the court erred.
In the now-paused federal criminal case in which President Trump was charged for obstruction and conspiracy for his actions related to Jan. 6, 2021, he was gagged by a broad order that the appeals court later narrowed.
Timeline
On Oct. 17, U.S. District Judge Tanya Chutkan issued a gag order that prevented President Trump from making statements that would “target” several parties related to the case, including prosecutors and potential witnesses or the substance of their potential testimonies.
The order came after prosecutors filed a motion to prohibit President Trump from making certain “inflammatory” statements about the case, which they argued could sway potential jurors to his side.
The judge later briefly lifted the gag order when President Trump took the issue to the appeals court, only to reinstate it days later. She clarified in the subsequent order that the word “target” was meant to prevent both criticism or praise of potential witnesses, which may sway them in their testimony.
On Nov. 3, the appeals court temporarily lifted the gag order, scheduling a hearing for Nov. 20.
During the hearing, a panel of three judges pressed both sides to present a useful test for whether the defendant’s statements would cross a line and cause harm and received none.
On Dec. 8, the court reinstated a narrowed gag order, finding that Judge Chutkan had erred in using the word “target,” which made the gag order too broad.
Under the amended gag order, President Trump is 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.”
The new order would, for example, allow him to accuse the prosecutors of bias or allege they are politically motivated, which was unclear before, and name public figures in a campaign speech even if they may be related to his case.
Threats?
Three days after President Trump was indicted, he posted on Truth Social, “If you go after me, I’m coming after you!” Prosecutors took this to be a “public threat“ and made more than one request for a protective order regarding President Trump’s speech or use of social media.
“Similar attacks continue to this day in other pending cases involving the defendant,” the prosecutors argued in opposition to President Trump’s petition for a rehearing.
The defense team maintains that prosecutors have not shown any basis for a gag order on President Trump, who also happens to be the likely Republican Party nominee and faces a busy campaign schedule. They have argued that prosecutors have not produced threats linked to President Trump’s speech, nor any witness who has suffered intimidation due to President Trump’s speech.
Prosecutors argued that special counsel Jack Smith, his family, his staff members, and trial witnesses have been targeted in President Trump’s speech and there is a “pattern stretching back years” which links his speech to harassment by his supporters.
President Trump’s attorneys, meanwhile, argue that he cannot be held liable for the actions of third parties unknown to him, including many who are anonymous.
Appeals court judges agreed in part, noting that public figures, including Mr. Smith, generally understand that public criticism comes with the office and a gag order should not be used just to shield them from criticism.
The judges showed a concern for staffers who were not public figures, however, pointing to a New York gag order that prohibited President Trump from making any statements about a judge’s staff. The judge and clerk had produced hundreds of threatening voicemails they alleged were linked to President Trump’s speech, and that gag order had been upheld by a state appeals court.
Referencing these threats, the federal appeals court found a gag order necessary, and kept much of it intact after altering the language to limit only speech directly related to the case.
