On Friday, the Court of Appeals for the DC Circuit unanimously upheld district court Judge Tanya Chutkan’s gag order against Donald Trump in his criminal prosecution in the election interference case, while narrowing the order in several respects to protect his First Amendment rights.
The ruling’s most important message came in both its words and in its speed. This court has no use for Trump’s attempts at delay.
Here are four key takeaways:
1. No one is above the law. The question in every aspect of Trump’s cases is how the law will deal with his continual assertions that ordinary rules do not apply to him.
Friday’s unanimous three-judge panel rejected the notion that Trump, because he is running for president, enjoys absolute rights under the First Amendment: “Like any other criminal defendant, Mr. Trump does not have an unlimited right to speak … He must stand trial in a courtroom under the same procedures that govern all other criminal defendants. That is what the rule of law means.”
2. The DC Appeals Court does not have its head in the sand. The ruling does not shrink from recognizing the vicious reality of Trump’s threats: “Mr. Trump has repeatedly attacked those involved in this case through threatening public statements … [His] words have real-world consequences.”
The court twice quotes his infamous social post, “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” The ruling details the life-disrupting effects of Trump’s false accusations against Georgia election worker Ruby Freeman: “She ‘had to move out of [her] house because the FBI said it wasn’t safe.” She received “messages ‘say[ing] things like, ‘We know where you live, and we’re coming to get you, n[****]r.’”
Recognizing the potential to intimidate witnesses based on Trump’s past statements, the court upheld Judge Chutkan’s gag order barring him from “commenting publicly on a potential witness’s decision to participate in the criminal investigation, choice to cooperate with either party, or expected testimony.”
Similarly, the court affirmed the prohibition on Trump’s “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.”
3. Trump will soon be testing the waters. With respect to the three categories of individuals listed immediately above, the court added a significant requirement before he can be punished for violating the order. It must be shown that he intended to “interfere with counsel’s or staff’s work in this criminal case” or knew that interference was highly likely.
For practical purposes, requiring proof of that subjective mental element gives Trump a virtual green light to attack such individuals via social media if he creates a bit of ambiguity about his intent. Except in the most extreme threats, the Justice Department will not likely be initiating mini-trials over his state of mind.
Trump is masterful at finding the weak link in attempts to chain him.
4. The court sees through Trump’s “big stall.” By taking only five weeks to resolve this appeal, the court shows its recognition of the need for speed in Trump’s cases. The court also verbally sent the same message of impatience with Trump’s strategy of delaying his prosecution.
Consider multiple statements in the opinion:
Delaying the trial date until after the election, as Mr. Trump proposes … unreasonably burdens the judicial process.
Mr. Trump has repeatedly asked to push back the trial date in this case for two additional years.
The general election is almost a year away and will long postdate the trial in this case.
Trump’s appeal from Judge Chutkan’s recent denial of two legally unsound motions is already on its way to the appeals court. One claim is for immunity from prosecution based on his actions as a former president, the other on a double jeopardy claim because he was impeached and acquitted by Congress.
Trump can’t win here, but he can delay. The “big stall” serves twin goals.
First, he wants to avoid his election prospects dropping if he is convicted. A recent New York Times/Siena poll showed that 6 percent of his supporters in battleground states would switch from supporting him if he is convicted. Second, if Trump is elected, he will have his Justice Department drop any prosecution or he will attempt a self-pardon.
That’s why the real headline on Friday’s appellate court gag order ruling is the court’s awareness of his “big stall.” The court will not allow justice being denied by being delayed.
Dennis Aftergut is a former federal prosecutor and civil litigator, currently of counsel to Lawyers Defending American Democracy.