Trump Attorneys Make Their Appeal Pitch, Arguing Partial Gag Order an Unjustified ‘Muzzle’ on the Former President
Attorneys for Donald Trump on Wednesday filed the latest legal salvo in their effort to fight a gag order in the Washington, D.C., election-subversion federal case against the former president.
In a 67-page brief filed with the U.S. Court of Appeals for the District of Columbia Circuit, Trump’s attorneys argued there is no justification for the gag order, and said it will “muzzle the core political speech” of Trump amid his bid to return to the White House.
“The gag order restricts President Trump from making public statements about key aspects of his prosecution at the hands of the Administration he is seeking to replace—issues that are central to, and inextricably entwined with, the 2024 Presidential campaign,” Trump’s attorneys wrote. “The gag order violates President Trump’s most fundamental First Amendment rights.”
The partial gag order, issued by U.S. District Judge Tanya Chutkan on Oct. 17, prohibited not just Trump but all parties to the case from making statements that “target” prosecutors or their staff, defense lawyers or their staff, court staff and supporting personnel, and “any reasonably foreseeable witnesses or the substance of their testimony.”
Trump’s legal team responded to the gag order by filing an immediate appeal with the D.C. Circuit Court of Appeals and a separate motion asking Chutkan to remove the gag order while the appeal was pending. Chutkan temporarily paused the gag order to give both parties an opportunity to present briefings on the topic before reinstating the order in a ruling on Oct. 30.
Trump’s legal team escalated the matter last week, filing an emergency motion with the D.C. Circuit Court of Appeals asking for the gag order to be administratively paused while their appeal is pending.
The D.C. Circuit on Friday established its schedule for the expedited case, while putting in place a temporary pause on the requirements of the gag order pending the appeal.
Special Counsel Jack Smith will have until Nov. 14 to file a brief on the matter, and a reply brief from Trump’s legal team is due Nov. 17. Following the briefs, oral arguments are scheduled for Nov. 20.
Trump: BRENDAN SMIALOWSKI/ Getty Images; Smith: Drew Angerer/ Getty Images; Capitol: Stefan Zaklin / Stringer/ Getty Images
The three-judge panel overseeing the proceeding includes Judges Patricia Millett and Cornelia Pillard, both appointees of former President Barack Obama, and Judge Bradley Garcia, an appointee of President Joe Biden.
The question of whether the gag order restricts Trump’s political speech is a matter of dispute between the prosecution and defense.
Chutkan’s three-page gag order stated that it does not prohibit Trump “from making statements criticizing the government generally, including the current administration or the Department of Justice; statements asserting [Trump] is innocent of the charges against him, or that his prosecution is politically motivated,” or statements criticizing his current political rivals.
In their brief on Wednesday, Trump’s legal team described Chutkan’s order as both “unconstitutionally vague” and “sweepingly overbroad” and said it should be reversed in its entirety.
“President Trump is the leading Republican candidate for President of the United States, and he has a fundamental right to spread his core political speech and message,” Trump’s lawyers said. “His audiences, and the American public, have a fundamental right to receive his campaign speech.”
If the appeals court affirms any portion of Chutkan’s gag order, Trump’s attorneys said in Wednesday’s filing, they are requesting that the court keeps the administrative pause in place for seven days “to permit him to seek emergency relief from the U.S. Supreme Court.”
Trump is charged with four federal felonies in the case alleging he obstructed the 2020 presidential election and has pleaded not guilty to all charges. His trial is scheduled to begin on March 4, the day before Super Tuesday when 14 states vote including California, Colorado, North Carolina, Texas and Virginia.
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