A three-judge panel of the US Court of Appeals for the District of Columbia Circuit has granted former president Donald Trump’s request to temporarily lift a district court order barring him from attacking or disparaging witnesses and other figures connected to the election subversion and conspiracy case pending against him in Washington.
The unsigned two-page order, which was issued on Friday evening, specified that the decision to grant an administrative stay is meant to give the court “sufficient opportunity to consider the emergency motion for a stay pending appeal and should not be construed in any way as a ruling on the merits of that motion”.
The panel of Circuit Judges Patricia Millett, Cornelia Pillar and Bradley Garcia is scheduled to hear oral arguments over the gag order on 20 November at 9.30am est.
Mr Trump’s attorneys had filed court papers late on Thursday with the appellate court in which they argued that the gag order imposed by Judge Tanya Chutkan on 16 October was inappropriate and an infringement on his right to free speech because he is “the leading candidate for President of the United States”.
At the time she entered the order, Judge Chutkan acknowledged Mr Trump’s status as a candidate and said her order would not bar him from “criticising the government generally ... or the Justice Department” or statements characterising his prosecution as “politically motivated”.
But she said she would prohibit anyone involved in the case from “targeting” court personnel, prosecutors, or their families.
“Mr Trump can certainly claim he’s being unfairly prosecuted. But I cannot imagine any other criminal case in which the defendant is permitted to call the prosecutor ‘deranged’ or a ‘thug,’ and I will not permit it here,” she explained.
She also said her order would prohibit statements about witnesses or potential witnesses, or about their testimony and noted that the ex-president’s past conduct and the tendency of those targeted by him to receive threats and harassment figured prominently in her decision to impose the order.
“My review of past statements made by Mr Trump in particular, as well as the evidence that they have led to harassment and threats for the people he has targeted persuades me that without this restriction, there is a real risk that witnesses may be intimidated or unduly influenced, and that other potential witnesses may be reluctant to come forward, lest they be subjected to the same harassment and intimidation,” she said.
Continuing, she said the ex-president “may still vigorously seek public support as a present presidential candidate, debate policies and people related to that candidacy, criticise the [Biden] administration and assert his belief that this prosecution is politically motivated”.
“But those critical First Amendment freedoms do not allow them to launch a pre-trial smear campaign against participating government staff, their families, or foreseeable witnesses, she said. “No other criminal defendant would be allowed to do so. I'm not going to allow it in this case”.
She added that his status as a presidential candidate “does not give him carte blanche to vilify and implicitly encourage violence against public servants for simply doing their job”.
But Mr Trump’s legal team, in their request to the circuit court, said the gag order should be lifted while he appeals it. Judge Chutkan had previously ordered an administrative stay of her own ruling but lifted it after the government asked her to reconsider the ruling.
Specifically, they asked for a ruling on whether the gag order would remain in place by 10 November, or barring that, a seven-day stay of her ruling so they can ask the Supreme Court to intervene.
“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,” Trump’s attorneys said. “The Gag Order embodies this unconstitutional hostility to President Trump’s viewpoint. It should be immediately stayed”.
They also argued that the order should be “subject to the most exacting scrutiny” because of his status as a political candidate, and because the order barring him from attacking prosecutors and witnesses “silences public criticism of quintessential public figures—speech entitled to the highest level of First Amendment protection”.