{O} n Friday afternoon, the D.C. Circuit federal appeals court issued a ruling that pared back the excesses of the protective gag order issued in the district court by Judge Tanya Sue Chutkan at the request of special counsel Jack Smith. I previously criticized Smith’s effort to muzzle Trump, and National Review editorialized against the resulting order by Judge Chutkan. The D.C. Circuit’s opinion, written by Judge Patricia Millett (an Obama appointee) and joined by judges Cornelia Pillard (an Obama appointee) and Bradley Garcia (a Biden appointee) is, unsurprisingly, not sympathetic to Trump. But it strikes a much more serious balance between the needs of the criminal process and the needs of the political process.

Judge Chutkan ordered that “all interested parties in this matter . . . are prohibited 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.” But the court allowed “statements criticizing the government generally, including the current administration or the Department of Justice; statements asserting that Defendant is innocent of the charges against him, or that his prosecution is politically motivated; or statements criticizing the campaign platforms or policies of Defendant’s current political rivals,” as well as allowing criticism of the judge herself.

This created a bunch of asymmetries and ambiguities: What does it mean for a statement to “target” someone? Would Trump be unable to criticize Mike Pence, who was a likely witness but then running against him? Would limits on directing others to make statements mean that Trump’s campaign could not discuss matters that Joe Biden’s campaign would be free to discuss — even though Smith ultimately answers to Biden and his attorney general? Would Trump and his team be barred from criticizing Smith in ways that Bill Clinton and his team went after Ken Starr as a central feature of Clinton’s political defense? Was Trump’s speech going to be limited in pursuit of the fiction that a D.C. jury would be coming into a trial about January 6 and the 2020 election having never heard of those controversies — after congressional Democrats held televised public hearings in the district?

Many of these problems were the result of an inherently political case that should never have been brought in federal court. But courts are left to manage as best as they can in impossible situations.

Rules of the Road

Courts have long-established powers to limit the prosecutors and defense in a criminal case from certain kinds of public speech in order to avoid witness tampering, biasing the jury, and inciting threats against jurors and court personnel. For example, as the D.C. Circuit noted, Trump did not challenge the order barring him from communicating directly with potential witnesses, a power granted expressly by Congress to federal courts.

Judges are expected to exercise those powers as threats to a fair trial (for either side) come into view, and not let things get out of hand before acting. The court noted that “when a case involves extensive media coverage and public interest, or when the parties are trying the case in the media rather than the courtroom, a court cannot sit back and wait for a carnival atmosphere to descend before acting. . . . Quite the opposite.” (Quotation and citation omitted.)

On the other hand, as the D.C. Circuit also observed, “Court orders restraining speech about an ongoing criminal proceeding are presumptively unconstitutional.” Even in an ordinary case, a gag order on a defendant is not routine, but must be justified by the particular circumstances of the case and must be “narrowly tailored,” i.e., no broader than necessary to address the specific threat. The exact boundaries are not settled: As the court noted, “While the Supreme Court has repeatedly said that district courts have the power, where necessary, to restrict the speech of the accused, it has never directly reviewed an order limiting the out-of-courtroom speech of a criminal defendant.”

In a normal criminal case, the main issue is balancing the need for a fair trial against the First Amendment rights of the defendant to speak. Added on the defendant’s side is the general public interest in trials, in order to supervise their fairness. But this is not at all a normal criminal case. It’s not just that the defendant is a candidate for president and a former president (which is true in each of Trump’s cases). It’s also that he’s being prosecuted by the agents of the current president about the legitimacy of the current president’s election to office.

As a result, it’s not just Trump’s own interests at stake here. There is an enormous public interest in hearing from both the Trump and Biden camps about this prosecution (the latter of whom is unrestricted by Judge Chutkan’s order, as are its allies in the press). It is not an overstatement to say that Trump has made the legitimacy of his prosecutions and the legitimacy of the 2020 election the central issues in his 2024 presidential campaign. And if you believe the general-election polls, more Americans side with him than with Biden. Be appalled all you like at that: Our democracy won’t survive if presidential challengers are gagged by court order from prosecuting their case against the sitting president in the fullest and bluntest way possible.

The fundamental error in Judge Chutkan’s order was that she gave no real weight to that real-world context. Trump, as usual — whether because of his own status as the client from Hell or the downstream effects of bad lawyering by his counsel — did not have the best arguments presented on his behalf, as his lawyers conceded at oral argument that the Trump legal “position would be the same even if there were no political campaign underway.” But the D.C. Circuit, while nominally disclaiming this as a factor, nonetheless correctly put some real teeth into the need to justify the gag order in the political circumstances of the case.

The First Amendment, the court observed, “allows voters to make informed decisions about those who seek to represent them in government, including their character, qualifications, and policy platforms. . . . We do not allow such an order lightly. Mr. Trump is a former President and current candidate for the presidency, and there is a strong public interest in what he has to say.” Specifically:

Mr. Trump, it bears noting, is simultaneously a criminal defendant and a political candidate for the Republican presidential nomination. Under the court’s Order, his opponents could without restriction wield the indictment and evidence in the case to demonstrate his unfitness for office. Yet the Order would allow Mr. Trump to respond only by asserting that he is innocent of the charges, and then changing the subject to his rival’s campaign platform or policies. . . . Permitting Mr. Trump to answer such political attacks with only an anodyne “I beg to differ” would unfairly skew the political debate while not materially enhancing the court’s fundamental ability to conduct the trial. [Quotations and citations omitted.]

Trump’s lawyers also didn’t help their case by taking a maximalist position that offered no way for the appeals court to balance the issues at stake. As the court noted, his position “gives no inch to the need to protect the criminal justice process” and proposed a legal standard (based on the old and much-discredited “clear and present danger” standard) that “has no legal mooring” and no basis in the original understanding of the Constitution. When asked, Trump’s lawyers could identify no speech that they would concede that the district court could properly ban other than things that would already have been illegal.

On the other side of the ledger, the D.C. Circuit rightly gave no weight to Smith’s ridiculous arguments about prejudicing the jury, which Judge Chutkan declined to rely upon as a basis for the order. Thus, the appeals court focused narrowly on speech that would either intimidate witnesses or threaten court personnel.

The Threat

The court’s reasons for restricting some of Trump’s public statements are serious ones, and as distasteful as it is to see a court gagging a presidential candidate on a matter of public interest to voters, we should not gloss over the extreme provocations Trump has presented to the legal system. Any other defendant whose statements were not of comparable public interest would richly deserve a gag order as harsh as the one Judge Chutkan imposed, or worse. And the court very properly considered Trump’s overall pattern of conduct toward the judicial process in his other ongoing criminal and civil cases, as well as the tendency of those public statements to bring down grief (even if only from a small and arguably unrepresentative fraction of his supporters) on witnesses, lawyers, and court personnel.

The briefs, the public record, and the D.C. Circuit opinion are full of examples of ALL CAPS social-media statements from Trump and the consequences they poured down upon people in the legal system. One example:

The day after Mr. Trump’s “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” post, one of his supporters called the district court judge’s chambers and said: “Hey you stupid slave n[*****][.] * * * If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly b[****]. * * * You will be targeted personally, publicly, your family, all of it.”

Undoubtedly, some of this is empty bluster, but law enforcement has to take such threats seriously — and the more of them there are, the likelier it is that some of them are not just bluster. As the D.C. Circuit concluded:

Mr. Trump’s documented pattern of speech and its demonstrated real-time, real-world consequences pose a significant and imminent threat to the functioning of the criminal trial process. . . .

Many of former President Trump’s public statements attacking witnesses, trial participants, and court staff pose a danger to the integrity of these criminal proceedings. That danger is magnified by the predictable torrent of threats of retribution and violence that the district court found follows when Mr. Trump speaks out forcefully against individuals in connection with this case and the 2020 election aftermath on which the indictment focuses. . . .

The undertow generated by such statements does not stop with the named individual. It is also highly likely to influence other witnesses. Even witnesses not yet publicly identified, who lack the special capacity or resources to protect themselves or their families against the risk of ensuing threats or harm, will be put in fear that, if they come forward, they may well be the next target.

As result, “some aspects of Mr. Trump’s public statements pose a significant and imminent threat to the fair and orderly adjudication of the ongoing criminal proceeding, warranting a speech-constraining protective order. . . . The district court had the authority to restrain those aspects of Mr. Trump’s speech that present a significant and imminent risk to the fair and orderly administration of justice, and that no less restrictive alternatives would adequately address that risk.” If this case involved a defendant who wasn’t a candidate for high public office, the frequently unhinged and inciting behavior from Trump would have gotten him gagged a while ago, and in much harsher terms. And that would be fair and proper. The only reason to let him keep spouting off like this is the enormous public interest in these cases.

Prosecutors and Judges

In spite of Trump’s conduct, the D.C. Circuit found that Judge Chutkan’s order “sweeps in more protected speech than is necessary”:

By broadly proscribing any statements about or directed to the Special Counsel and the court’s and counsel’s staffs, as well as reasonably foreseeable witnesses or their testimony, the Order sweeps too broadly. It captures some constitutionally protected speech that lacks the features or content that would trench upon the court’s proper functioning or ability to administer justice. Under the Order, Mr. Trump could not, for example, say that a former government official and potential witness is a “liar,” or that the Special Counsel is a “Trump hater.”. . . Nor could Mr. Trump express his opinion that the staff, in general, at the courthouse has been “terrific” and “helpful,” or, conversely, “hard to work with.”

A specific example of that excess was attempting to shield Smith from exactly the sorts of public criticism that was wielded against Starr:

As written, the Order prohibits interested parties from making or directing others to make any public statements that target — that are directed to or aimed at — prosecutors. . . . That goes too far. Prosecutors are vested with immense authority and discretion, including the power to take steps that can result in persons’ loss of liberty. The public has a weighty interest in ensuring that such power is exercised responsibly. And criminal defendants facing potential curtailments of liberty have especially strong interests in commenting, within reasonable bounds, on prosecutors’ use of their power. . . .

The Order should not have restricted speech about the Special Counsel himself. The Order already exempts speech about the Department of Justice as an institution. . . . The Special Counsel himself is . . . both an individual trial participant and a representative of the institution — that is, the Department of Justice’s Office of Special Counsel. . . . As a high-ranking government official who exercises ultimate control over the conduct of this prosecution, the Special Counsel is no more entitled to protection from lawful public criticism than is the institution he represents. [Quotations and citations omitted.]

The appeals court also reminded readers, “The courts and the judges who sit on them enjoy no greater immunity from criticism than other persons or institutions,” and applauded Chutkan for not immunizing herself from criticism. That’s a lesson that should not be lost on judges in Trump’s other cases.

That said, the court didn’t eliminate all of the restrictions on Trump’s ability to bully people working for the court or the prosecutor who are not high-ranking Justice Department policy-makers or life-tenured judges. And it reminded Trump that even a gag order doesn’t prevent him from raising legitimate grievances against court and DOJ personnel in a court filing, in the way that defendants and their lawyers normally do if they have some basis in evidence and law for a complaint: “Should Mr. Trump have reasonable concerns about the impartiality or actions of court or prosecutorial staff, and their effect on the integrity of the trial process, the better course is for his counsel to voice those concerns in a motion filed with the court, where that filing will be a matter of public record.”

Witness Intimidation

Turning to the issue of witnesses and Trump’s ability to evade rules against contacting them directly by putting them on blast in his public utterances, the appeals court again applied some common sense. For example, a number of the potential witnesses are former senior public officials who have written books about their issues with Trump; the court concluded that “public exchanges of views with a reasonably foreseeable witness about the contents of his forthcoming book are unlikely to intimidate that witness or other potential witnesses weighing whether to come forward or to testify truthfully”:

Mr. Trump has a First Amendment interest in publicly debating those individuals’ commentaries in a way that is independent of and disassociated from any role they might have in the trial. . . . Rather than prohibiting speech that “target[s]” known or reasonably foreseeable witnesses, the Order must focus more directly and narrowly on comments that speak to or are about those persons’ potential participation in the investigation or in this criminal proceeding. That allows the former President to continue to speak out about those same persons’ books, articles, editorials, interviews, or political campaigns as long as he does so in a manner that does not concern their roles as witnesses or the content of any expected testimony. For those witnesses who previously served or are currently serving in high-level government positions, narrowing language would also allow the former President to voice his opinions about how they performed their public duties, wholly separate from their roles as potential witnesses.

Offering an example, the court contrasted Trump trashing his former attorney general Bill Barr in general terms as a man lacking “courage or stamina” (permissible) to Trump specifically attacking his former chief of staff Mark Meadows for allegedly testifying in exchange for “IMMUNITY” (impermissible). Of course, if Meadows testifies, Trump’s lawyers can still cross-examine his motives for testifying, and doing so in open court allows for public comment on those motives. Trump just can’t attack his cooperation before he takes the stand, as a means of deterring him from doing so. The D.C. Circuit urged some common sense in examining the context of Trump statements in order to draw those lines.

Overall, the court has the right idea: It’s not the place of the courts, even in a criminal trial, to protect from criticism powerful public figures. It is more legitimate to shield private citizens from carrying the same burdens of public controversy as those public figures.

There are good reasons to dislike Trump’s behavior toward the legal system. There are also good reasons to dislike this prosecution, and to cast a skeptical eye on any gag order. But in attempting to balance the legitimate interests of free speech, free elections, and fair trials, the D.C. Circuit has done a good job.