Former President Donald Trump asked a full appeals court Monday to reconsider a ruling that upheld a federal gag order limiting what he can say about the case that alleges he conspired to overturn the 2020 election results.
In court filings, defense lawyers said a three-judge panel on the U.S. Court of Appeals for the D.C. Circuit gave little deference to Mr. Trump’s status as a top 2024 candidate for president and violated his right to free speech, particularly as a candidate for political office.
The panel this month said Mr. Trump must not make public statements about “foreseeable witnesses” in the federal case brought by special counsel Jack Smith, nor sound off on court personnel or prosecutors other than Mr. Smith.
The judges narrowed the initial order from U.S. District Court Judge Tanya S. Chutkan to say that Mr. Trump is still permitted to speak about Mr. Smith.
Yet Mr. Trump’s lawyers say the order is still too broad. They want the entire appeals court to hear his appeal against the gag order in what’s known as “en banc” consideration.
“This petition presents a question of exceptional importance: Whether a district court may gag the core political speech of the leading candidate for President of the United States — disregarding the First Amendment rights of over 100 million American voters — based on speculation about undefined possible future harms to the judicial process,” Mr. Trump’s lawyers wrote.
They said the ruling by the panel of three Democrat-appointed judges conflicts with Supreme Court rulings that suggested politicians have carte blanche to discuss criminal cases against them, and said the panel relied too heavily on the “anticipated reaction of independent audience members to President Trump’s speech.”
Judge Chutkan imposed the gag order amid concerns about Mr. Trump’s strident rhetoric at political rallies and on social media.
Democrats and prosecutors say the rules of the court bind Mr. Trump and he should not be allowed to issue statements that could intimidate former Vice President Mike Pence or other potential witnesses, or lead to the type of violence the nation saw during the Capitol attack on Jan. 6, 2021.
Mr. Trump’s lawyers say the courts fail to see the big picture, given their client is the GOP frontrunner for president.
“The gag order has been criticized across the political spectrum for interfering with the voters’ ability to hear from the leading presidential candidate,” they wrote. “The panel opinion here treats the fact that President Trump is the leading candidate for president as virtually insignificant.”
Mr. Smith’s case alleges Mr. Trump conspired against the U.S. and its citizens by conspiring with others to overturn the lawful results of the last presidential election, including through the formation of a false slate of electors.
It is one of several criminal trials that confront Mr. Trump as he campaigns for president.
Mr. Smith also secured an indictment alleging Mr. Trump stored sensitive government documents at his Florida estate and obstructed archivists’ efforts to retrieve them.
New York prosecutors indicted Mr. Trump on charges he gave hush-money payments to a porn star ahead of the 2016 election, and Mr. Trump and his allies face trial in Atlanta on charges they tried to overturn the 2020 election results in Georgia.
• Tom Howell Jr. can be reached at thowell@washingtontimes.com.
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