Trump’s Battle to Overturn Gag Order Fails as Full Judicial Panel Upholds Decision in Special Counsel Jack Smith’s Election Case

Jack Smith adds more charges against Trump
Photo: (AP/Reuters)

On Tuesday, the D.C. Circuit Court of Appeals made a significant ruling, upholding the partial gag order against former President Donald Trump in the ongoing Washington, D.C. election subversion case. This decision came as a response to Trump’s appeals for the court to reassess its earlier stance, which largely supported the restrictions imposed on his public statements regarding the case.

The court denied the former president’s requests through two concise one-page orders. These requests included a plea for a rehearing by the same panel of three judges who initially heard the case, as well as a call for an “en banc” review, which would involve the entire bench of judges on the court. Such en banc petitions are typically seen as a precursor to seeking intervention by the U.S. Supreme Court.

However, a response from Trump’s team to this denial was not immediately available. Shortly after the ruling, Trump took to Truth Social, his social media platform, to share a brief campaign video. In this 15-second clip, he asserts that efforts to silence him are in place because he stands against silencing the American people. The video also served as a call to action for voters in New Hampshire to participate in the state’s GOP primary.

This legal battle began with a three-page opinion and order issued by U.S. District Judge Tanya Chutkan on October 17. Judge Chutkan, overseeing Trump’s criminal case, laid down prohibitions on public statements. These restrictions were targeted at statements that might affect prosecutors, their staff, defense lawyers, court personnel, supporting staff, and potential witnesses, including the content of their testimony.

Trump’s legal team, arguing against these restrictions, underscored the significance of the issue. They contended that such a gag order impinged upon the First Amendment rights of a leading presidential candidate, thereby affecting over 100 million American voters. They argued that the order was based on mere speculation about possible future damages to the judicial process.

Despite these arguments, Chutkan’s order was comprehensive, applying to all parties involved in the case, not exclusively to Trump. The order did, however, allow Trump the freedom to critique the Biden administration, and the Department of Justice, and to express views on his prosecution being politically motivated.

Following Chutkan’s decision, Trump promptly appealed to the D.C. Circuit Court of Appeals. The panel, consisting of Judges Patricia Millett, Cornelia Pillard (both appointed by former President Barack Obama), and Judge Bradley Garcia (appointed by President Joe Biden), deliberated the case for over two hours on November 20.

On December 8, the panel, in a detailed 68-page opinion, decided to maintain the gag order with minor modifications. They acknowledged the public interest in Trump’s statements, given his status as a former President and current presidential candidate. However, they emphasized the importance of him undergoing trial under standard procedures applicable to all criminal defendants, in line with the rule of law.

The gag order’s main restrictions, as established in October, were upheld. These included a ban on public statements about potential witnesses or their involvement in the investigation or proceedings. The order also continued to restrict comments about the case’s counsel, court staff, and their family members, particularly if such statements could materially interfere with the case.

In the latest development, the full D.C. Circuit Court of Appeals, including judges appointed by Trump, declined to vote on the matter, thereby rejecting Trump’s petition for an en banc hearing. They did not offer any explanation for this decision. Additionally, the panel of Millett, Pillard, and Garcia refused Trump’s request for a rehearing and declined to suspend the gag order while he continues his appeals.

Trump faces four federal felony charges in this case, related to allegations of obstructing the 2020 presidential election. He has pleaded not guilty to all charges. His trial is set to commence on March 4, a day before Super Tuesday, when 14 states, including California, Colorado, North Carolina, Texas, and Virginia, are scheduled to hold their primaries.

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