Trump Asks Appeals Court To Lift Gag Order And Save Him From His Own Big Mouth

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(Photo by Win McNamee/Getty)

Last night Donald Trump filed an emergency motion to stay the gag order in the DC election interference case. Because it is absolutely essential that Trump be able to intimidate witnesses on Truth Social without judicial interference.

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On October 17, Judge Tanya Chutkan barred the former president from comments targeting courtroom staff, prosecutors, or witnesses in the case. Trump’s lawyers managed to convince the court to administratively stay the order to accommodate briefing and a hearing on the request for a permanent stay pending appeal. Their client took advantage of that brief window to attack Bill Barr generally and Mark Meadows specifically on the subject of his testimony in this case.

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As Judge Chutkan pointed out in her order reinstating the gag, Trump’s ability to color inside the lines during the pendency of the order and his immediate pivot toward open witness intimidation once it was lifted strongly suggest that her edict suffers from no defect of vagueness.

Trump’s emergency plea to the DC Circuit omits some of the more gonzo arguments he made in his Saturday filing to Judge Chutkan, particularly his defense of the Meadows post as necessary and proper in response to “prosecutorial or witness leaks.” But in most respects, the appeal echoes his filings in the lower court, right down to likening the violence perpetrated by Trump’s followers to a “heckler’s veto.”

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He’s still arguing that gag orders must be evaluated based on the Brandenberg incitement standard or perhaps accorded strict scrutiny as “viewpoint discrimination.” He’s still insisting that the “substantial likelihood of material prejudice” standard from Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) only applies to lawyers, not parties. He’s still complaining that the order only binds him and not his political enemies. And he’s still insisting there’s no evidence that his words spark violence, even after two people were indicted for threatening to kill Judge Chutkan and law enforcement officials in Fulton County, Georgia.

Trump further purports to vindicate the First Amendment interest of millions of Americans, cruelly deprived of the opportunity to hear their leader doxx the special counsel’s wife, demand execution for (Ret.) Gen. Mark Milley, and lecture Mark Meadows that people who testify for the government are “weaklings and cowards, and so bad for the future our Failing Nation.”

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Trump concludes with the bizarre argument that the gag order is not narrowly tailored because Judge Chutkan did not consider the “less restrictive means” of postponing the trial until after the election. The motion is a little fuzzy on how this would work out. Is he suggesting that the court would happily countenance public witness tampering after the election? Or is this argument premised on the assumption that Trump would be less inclined to bother with it once he gets back to the White House?

In any event, the former president requests relief by November 10. Let’s see if he can luck into a panel willing to save him from his own big mouth. Because judging by his inability to abide by New York Supreme Court Justice Arthur Engoron’s edict to lay off his law clerk, it seems unlikely that Trump will be able to comply with the DC order for long.

US v. Trump [DDC Docket via Court Listener]

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Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.

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Courts, Donald Trump, Government, Tanya Chutkan