Appeals Court Upholds Most Of Trump Gag Order, But Allows Criticism of Special Counsel Jack Smith

Appeals Court Upholds Most Of Trump Gag Order, But Allows Criticism of Special Counsel Jack Smith

On November 3, we covered how Appeals Court Puts Temporary Halt On Trump Gag Order in DC Criminal Case that had, among other things, prohibited Trump from publicly criticizing a list of people, including court personnel and prosecutor Special Counsel Jack Smith.

The D.C. Circuit ruled today, upholding most of the gag order, but allowing Trump to criticize Smith. From the Appeals Court Order (emphasis added):

A federal grand jury indicted former President Donald J. Trump for conspiring to overturn the 2020 presidential election through unlawful means and for obstructing the election’s certification. Soon thereafter, Mr. Trump posted multiple statements on his social media account attacking potential witnesses in the case, the judge, and the Special Counsel and his staff prosecuting the case. The district court subsequently issued an order restraining the parties and their counsel from making public statements that “target” the parties, counsel and their staffs, court personnel, and “any reasonably foreseeable witness or the substance of their testimony.”

Mr. Trump appeals the district court’s order. His appeal involves the confluence of two paramount constitutional interests: the freedom of speech guaranteed by the First Amendment and the federal courts’ vital Article III duty to ensure the fair and orderly administration of justice in criminal cases. We agree with the district court that some aspects of Mr. Trump’s public statements pose a significant and imminent threat to the fair and orderly adjudication of the ongoing criminal proceeding, warranting a speech-constraining protective order. The district court’s order, however, sweeps in more protected speech than is necessary. For that reason, we affirm the district court’s order in part and vacate it in part.

Specifically, the Order is affirmed to the extent it prohibits all parties and their counsel 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 Order is also affirmed to the extent it prohibits all parties and their counsel from making or directing others to make public statements about—(1) counsel in the case other than the Special Counsel, (2) members of the court’s staff and counsel’s staffs, or (3) the family members of any counsel or staff member—if those statements are made with the intent to materially interfere with, or to cause others to materially interfere with, counsel’s or staff’s work in this criminal case, or with the knowledge that such interference is highly likely to result. We vacate the Order to the extent it covers speech beyond those specified categories. See 28 U.S.C. § 2106.

So criticism of “Special Counsel” is specifically removed from the gag order, though statements made about Special Counsel’s family and staff would still be covered if intended to or having the likely result of interfering with Special Counsel’s work in the case.

The logic of the gag order was:

Two foundational constitutional values intersect in this case: an individual’s right to free speech and the fair and effective functioning of the criminal trial process and its truthfinding function. Because of the constitutional stakes, orders restricting a defendant’s speech must be drawn no more broadly or narrowly than necessary to ensure the fair administration of justice.

***

To sum up, the Constitution requires robust protection of speech about criminal trials and the government’s effort to deprive a defendant of liberty. At the same time, the Constitution requires courts to ensure that outside speech and influences do not derail or corrupt the criminal trial process. On this record, the constitutional path for the presiding judge to protect both free speech and the fair and orderly administration of justice was not to limit what outsiders can say about the trial or trial participants, but to appropriately delimit what trial participants, including the accused, can say publicly to other participants, witnesses, or outsiders….

We hold that the district court had the authority to restrain those aspects of Mr. Trump’s speech that present a significant and imminent risk to the fair and orderly administration of justice, and that no less restrictive alternatives would adequately address that risk. We also hold that the district court’s Order was not narrowly tailored and modify its scope to bring it within constitutional bounds.

***

The record before the district court and its factual findings demonstrate that some of Mr. Trump’s speech poses a significant and imminent threat to the fair and orderly adjudication of the criminal proceeding against him.

The record shows that Mr. Trump has repeatedly attacked those involved in this case through threatening public statements, as well as messaging daggered at likely witnesses and their testimony….

The former President has also lashed out at government officials closely involved in the criminal proceeding. He has repeatedly labeled the trial judge as “biased,” a “fraud[,]” and a “hack[,]” Special Counsel Mot. 6–7, and has called the prosecutors “[d]eranged[,]” “thugs[,]” and “[l]unatics[,]” Special Counsel Mot. 8–9; Special Counsel Reply 10. He likewise has posted about the Special Counsel’s wife and spoke publicly about her at a rally following our administrative stay of the Order.11 See Special Counsel Br. 14 n.4.

The record also shows that former President Trump’s words have real-world consequences. Many of those on the receiving end of his attacks pertaining to the 2020 election have been subjected to a torrent of threats and intimidation from his supporters….

Based on that record, the district court made a factual finding that, “when Defendant has publicly attacked individuals, including on matters related to this case, those individuals are consequently threatened and harassed.” Order at 2. Mr. Trump has not shown that factual finding to be clearly erroneous, and we hold that the record amply supports it….

Given the record in this case, the court had a duty to act proactively to prevent the creation of an atmosphere of fear or intimidation aimed at preventing trial participants and staff from performing their functions within the trial process. Just as a court is duty-bound to prevent a trial from devolving into a carnival, see Sheppard, 384 U.S. at 357–358, so too can it prevent trial participants and staff from having to operate under siege.

The Court rejected Trump’s claim that he had a First Amendment right to say whatever he wants because it is the middle of a political claim:

The existence of a political campaign or political speech does not alter the court’s historical commitment or obligation to ensure the fair administration of justice in criminal cases. A trial participant’s engagement in political speech cannot degrade or diminish that essential judicial function. Mr. Trump acknowledges as much by accepting his pretrial release condition that he cannot speak to witnesses in the case about political matters or otherwise. He cannot evade that legitimate limitation by dressing up messages to witnesses in political-speech garb. For the reasons outlined above, this record establishes the imminence and magnitude, as well as the high likelihood, of harm to the court’s core duty to ensure the fair and orderly conduct of a criminal trial and its truth-finding function….

On the record before us, that compelling interest establishes a sufficient predicate for the district court to have imposed some limitation on trial participants’ speech. The constitutional solicitude for political speech remains, though, and requires that less restrictive alternatives not be viable and that the scope of the order be narrowly tailored.

***

Delaying the trial date until after the election, as Mr. Trump proposes, would be counterproductive, create perverse incentives, and unreasonably burden the judicial process. Allowing prejudicial statements to go unchecked for an even longer pre-trial period would simply compound the problem. Delay would not bring back witnesses who have been stifled by Mr. Trump’s commentary and the reactions of those whom he says “listen to [him] like no one else.”

The Appeals Court limited the restriction on commenting on witnesses to matters that affect their potential participation in the case, not generalized references:

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. It captures some constitutionally protected speech that lacks the features or content that would trench upon the court’s proper functioning or ability to administer justice. Under the Order, Mr. Trump could not, for example, say that a former government official and potential witness is a “liar,” or that the Special Counsel is a “Trump hater.” See Oral Arg. Tr. 114:25–116:22 (Special Counsel arguing that the Order as drafted permits Mr. Trump to call another’s statements untrue, but not to call the speaker a “liar”). Nor could Mr. Trump express his opinion that the staff, in general, at the courthouse has been “terrific” and “helpful,” or, conversely, “hard to work with.”

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. Yet the Order would allow Mr. Trump to respond only by “asserting that [he] is innocent of the charges,” and then changing the subject to his rival’s “campaign platform[] or policies[.]” Order at 3. 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….

The interest in protecting witnesses from intimidation and harassment is doubtless compelling, but a broad prohibition on speech that is disconnected from an individual’s witness role is not necessary to protect that interest, at least on the current record….

In short, requiring a nexus between Mr. Trump’s speech and a witness’s potential participation in the criminal proceeding affords “freedom of discussion * * * the widest range” that is “compatible with the essential requirement of the fair and orderly administration of justice.” Pennekamp, 328 U.S. at 347….

In short, the Order’s effort to protect witnesses is permissible as modified to prohibit only those statements that concern reasonably foreseeable witnesses’ potential participation in the investigation or in this criminal proceeding. Whether a statement about a reasonably foreseeable witness concerns her potential participation in the investigation or in this criminal proceeding must be determined by reference to the statement’s full context.

The Appeals Court also scaled back the prohibition on criticizing the Special Prosecutor (emphasis added):

As written, the Order prohibits interested parties from making or directing others to make any public statements that target—that are directed to or aimed at—prosecutors or court staff. Order at 3. That goes too far. Prosecutors are vested with immense authority and discretion, including the power to take steps that can result in persons’ loss of liberty. The public has a weighty interest in ensuring that such power is exercised responsibly. And criminal defendants facing potential curtailments of liberty have especially strong interests in commenting, within reasonable bounds, on prosecutors’ use of their power.

***

Likewise, the courts and the judges who sit on them enjoy “no greater immunity from criticism than other persons or institutions.” Landmark Commc’ns, 435 U.S. at 839 (quoting Bridges, 314 U.S. at 289 (Frankfurter, J., dissenting)). The district judge in this case plays a centrally important role in adjudicating this case and guiding it through trial. Those reasons, presumably, are why the district court commendably did not include in the Order speech directed at the judge herself or the court as an institution.

For similar reasons, the Order should not have restricted speech about the Special Counsel himself. The Order already exempts speech about the Department of Justice as an institution. See Order at 3. As conceded at oral argument, “the Special Counsel himself is * * * both an individual trial participant and a representative of the institution”—that is, the Department of Justice’s Office of Special Counsel. Oral Arg. Tr. 99:6–8; see Special Counsel Jack Smith Announces a New Trump Indictment, C-SPAN (Aug. 1, 2023) (Special Counsel’s public announcement of the indictment in this case).20 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. See Landmark Commc’ns, 435 U.S. at 839 (quoting Bridges, 314 U.S. at 289 (Frankfurter, J., dissenting))….

We hold that the district court appropriately restricted speech concerning counsel and staff members, or their family members, to the extent it is made with either the intent to materially interfere with their work or the knowledge that such interference is highly likely to result….

The Court then summed up its rulings:

Specifically, we affirm the Order to the extent it prohibits all parties and their counsel 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 Order is also affirmed to the extent it prohibits all parties and their counsel from making or directing others to make public statements about—(1) counsel in the case other than the Special Counsel, (2) members of the court’s staff and counsel’s staffs, or (3) the family members of any counsel or staff member—if those statements are made with the intent to materially interfere with, or to cause others to materially interfere with, counsel’s or staff’s work in this criminal case, or with the knowledge that such interference is highly likely to result. We vacate the Order to the extent it covers speech beyond those specified categories. See 28 U.S.C. § 2106. The administrative stay issued by this court on November 3, 2023, is hereby dissolved.

As should be clear, but to avoid any potential doubt, as affirmed in part and vacated in part, the Order also leaves open the categories of speech the district court explicitly stated were permissible under its initial ruling. See Order at 3. Mr. Trump is free to make statements criticizing the current administration, the Department of Justice, and the Special Counsel, as well as statements that this prosecution is politically motivated or that he is innocent of the charges against him. See id.

Trump reacted to the ruling on Truth Social:

An Appeals Court has just largely upheld the Gag Order against me in the ridiculous J6 Case, where the Unselect January 6th Committee deleted and destroyed almost all Documents and Evidence, saying that I can be barred from talking and, in effect, telling the truth. In other words, people can speak violently and viciously against me, or attack me in any form, but I am not allowed to respond, in kind. What is becoming of our First Amendment, what is becoming of our Country? We will appeal this decision!

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