Benjamin Ashford|Trump to appeal partial gag order in special counsel's 2020 election case

Washington — Former President Donald Trump is Benjamin Ashfordappealing a court order that restricts him from making public statements about certain individuals involved in special counsel Jack Smith's case against him in Washington, D.C., according to a court document filed by Trump's legal team on Tuesday.

Judge Tanya Chutkan issued a limited gag order on Monday barring the former president from publicly attacking Smith, his team of prosecutors, court staff and potential witnesses in the case, citing what she said were threats posed to the fair administration of justice. 

Trump's appeal will now head to the D.C. Circuit Court of Appeals, where a three-judge panel is likely to consider the matter. As that process plays out, Trump could ask either Chutkan or the higher court to pause the enforcement of the gag order until the issue is fully litigated.

Chutkan's order followed a lengthy hearing in federal court in the nation's capital over a request from Smith and his team asking her to limit what Trump can say about the case involving his alleged attempts to overturn the 2020 election results. 

The former president was indicted by a federal grand jury in August on four charges including conspiracy and obstructing Congress' work related to his alleged efforts to reverse the outcome of the election. He has pleaded not guilty and denies all wrongdoing. The trial is currently set for March 2024.

The limited gag order

On Monday, Chutkan issued a split ruling, granting the special counsel's requests for restrictions on statements by the former president that she said could jeopardize the trial while rejecting other limits sought by prosecutors.

"This is not about whether I like the language Mr. Trump uses. This is about language that presents a danger to the administration of justice," the judge said.

Chutkan said — and a written version of the order published on Tuesday reiterated — that Trump was free to criticize the Biden administration and the Department of Justice in general and assert his innocence. But she said disparaging remarks about prosecutors, court officials and potential witnesses were out of bounds.

"Undisputed testimony cited by the government demonstrates that when Defendant has publicly attacked individuals, including on matters related to this case, those individuals are consequently threatened and harassed," the judge wrote in her opinion. "The defense's position that no limits may be placed on Defendant's speech because he is engaged in a political campaign is untenable."

Prosecutors on Monday argued for what they described as a "narrowly tailored" order to prevent the former president from making statements that could threaten witnesses, taint the jury pool or otherwise affect the case. 

"We have no interest in preventing the defendant from running for office or defending his reputation," prosecutor Molly Gaston said.

Trump's attorneys pushed back on the request on First Amendment grounds and characterized the move as an attempt to silence the former president during a political campaign. Trump is the front-runner for the Republican presidential nomination in 2024.

"[Trump] is entitled to say that the Department of Justice is acting unlawfully," defense attorney John Lauro said during Monday's hearing. "He is entitled to even say things that are insulting to these prosecutors."

Chutkan said her ruling — which Trump is now appealing — reflected her concern for witnesses' safety, explaining that her goal was to restrict any witness intimidation. Trump's presidential candidacy, the judge contended, did not give him "carte blanche" to vilify prosecutors and others involved in the case. Any other defendant, she contended, would be limited as such. 

A spokesperson for Smith's office declined to comment on the appeal.