Former President Donald Trump dances on stage during a commit to caucus rally, Sunday, Oct. 29, 2023, in Sioux City, Iowa. (AP Photo/Charlie Neibergall)
In an “emergency motion” for a stay pending appeal of a gag order issued by the trial judge in his Jan. 6 federal prosecution, former President Donald Trump and his lawyers argued that the “muzzling” violates his rights and the rights of “over 100 million Americans who listen” to his “uniquely powerful voice” as he criticizes the “Biden Department of Justice and the prosecutors” looking to imprison the “leading candidate for President of the United States.”
The motion filed Thursday with the U.S. Court of Appeals for the D.C. Circuit began by asserting that U.S. District Judge Tanya Chutkan’s gag order is unprecedented, by “muzzling President Trump’s core political speech during an historic Presidential campaign.”
Attorneys D. John Sauer and John Lauro argued that the Jan. 6 case gag order “violates the First Amendment rights of President Trump and over 100 million Americans who listen to him,” as it was based only on “an unconstitutional ‘heckler’s veto”” and speculation of an “actual or imminent threat to the administration of justice.”
What’s more, the lawyers asserted, the prosecutors and potential witnesses Trump was prohibited from attacking in public statements are “high-level government officials and public figures, many of whom routinely attack President Trump in their own public statements, media interviews, and books.”
Trump’s team, saying their client was indicted for mere “attempts to dispute the outcome of the 2020 Presidential election,” argued that a stay pending appeal should be granted because the “virtually per se invalid” gag order constitutes a “viewpoint-based prior restraint on the core political speech of a Presidential candidate to an audience of over 100 million Americans.”
Even the ACLU was among those who “widely criticized” the restriction on the “rights of voters to hear President Trump’s uncensored message,” the motion continued.
More Law&Crime coverage: Judge denies ACLU brief supporting Trump in gag order fight in Jan. 6 case
Chutkan’s gag order, aside from being “offensive” and “one-sided,” is also “incurably vague,” the motion said, as the word “target” can mean several things. The lawyers then cited the dictionary to illustrate their point:
For example, its key operative word, “target,” A3, could mean “a mark to shoot at,” “something or someone marked for attack,” “a goal to be achieved,” “an object of ridicule or criticism,” or “something or someone to be affected by an action or development,” among other meanings. Target, Merriam-Webster Online, at webster.com/dictionary/target. Thus, the Gag Order might prohibit (1) any statement that refers to a person in any way; (2) only statements that “attack” a person; (3) only statements that “ridicule” or “criticize” someone; or (4) any statement that “affects” a person in any way, even without directly naming them.
Trump reiterated that the gag order should be stayed pending appeal or else he’ll suffer irreparable injury through the loss of his First Amendment freedoms.
Donald Trump (AP Photo/Seth Wenig, POOL), Donald Trump, U.S. District Judge Tanya Chutkan (court photo)
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The appeal stems from Judge Chutkan’s Oct. 29 order that lifted a temporary stay of a partial gag order she issued earlier in the month, barring “[a]ll interested parties in this matter, including the parties and their counsel, […] from making any public statements, or directing others to make any public statements, that target (1) the Special Counsel prosecuting this case or his staff; (2) defense counsel or their staff; (3) any of this court’s staff or other supporting personnel; or (4) any reasonably foreseeable witness or the substance of their testimony.”
Chutkan agreed to temporarily stay the gag order pending Trump’s appeal to the D.C. Circuit, but the issue came back before her when the former president resumed his Truth Social attacks on former chief of staff Mark Meadows and “Deranged Prosecutor” special counsel Jack Smith.
“The statement singles out a foreseeable witness for purposes of characterizing his potentially unfavorable testimony as a ‘lie’ ‘mad[e] up’ to secure immunity, and it attacks him as a ‘weakling[] and coward[]’ if he provides that unfavorable testimony — an attack that could readily be interpreted as an attempt to influence or prevent the witness’s participation in this case,” Chutkan wrote of the Meadows post. “The plain distinctions between this statement and the prior one — apparent to the court and both parties — demonstrate that far from being arbitrary or standardless, the Order’s prohibition on ‘targeting’ statements can be straightforwardly understood and applied.”
While the Meadows post fueled the judge’s ire, she provided an example of one Truth Social post critical of the Biden administration and “Corrupt Trials” that did not run afoul of the initially imposed gag order.
Chutkan, a Barack Obama appointee, wrote that Trump and his legal team “simply fail[ed] to acknowledge” evidence of a causal link between his Truth Social attacks on witnesses and resulting threats and harassment.
“Defendant’s repeated appeals to broad First Amendment values therefore ignore that the court — pursuant to its obligation to protect the integrity of these proceedings — recognized those values but, in balancing them against the potential prejudice resulting from certain kinds of statements, found them outweighed,” the judge concluded.
Notably, Trump’s emergency motion with the D.C. Circuit already anticipates a battle at the U.S. Supreme Court over the issue.
“If the Court denies this motion, President Trump requests that the Court extend its administrative stay for seven days to allow him to seek relief from the U.S. Supreme Court,” the motion said.
Read the motion here.
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