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Ashley Oliver, Justice Department Reporter


NextImg:Trump gag order to take center stage in oral arguments next month

Former President Donald Trump’s objections to a gag order limiting his speech in the federal election subversion case against him will be heard by an appellate court during oral arguments in Washington, D.C., in less than two weeks.

A three-judge panel will hear arguments from attorneys for Trump and special counsel Jack Smith on Nov. 20, according to a court notice filed Tuesday.

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The order has been a source of controversy in the month since U.S. District Judge Tanya Chutkan implemented it in October.

First, Trump appealed the order, leading Chutkan to pause it and then reinstate it less than two weeks later while Trump's appeal was still pending.

Trump then responded by making an emergency request to the appellate court to put the gag order back on hold, and the court granted his request, meaning the gag order is once again temporarily inactive until the appellate court reaches a decision on it.

Originally issued on Oct. 17, the gag order banned parties in the case from making any public statements that "target" Smith or his staff, defense attorneys or their staff, court staff, and "any reasonably foreseeable witness or the substance of their testimony."

Former President Donald Trump waits to take the witness stand at New York Supreme Court in New York on Monday, Nov. 6, 2023.


Chutkan justified the order by saying that certain comments Trump had made about the case risked intimidating witnesses or causing people involved in the case to become targets of harassment and threats.

Trump's attorneys argued the order violated their client's right to freedom of speech. They said it was "breathtakingly overbroad" and that it prevented Trump, the leading GOP presidential candidate, from making almost "any public comment regarding a wide and undefined set of individuals and subjects."

When she reinstated her order, Chutkan provided two examples of Trump's speech to demonstrate that her order was specific enough to withstand First Amendment tests.

In one example, Trump had written on his social media platform Truth Social about the "Election Rigging Biden Administration" and the "Corrupt Trials" against him. Chutkan said general speech about the case like that was perfectly acceptable.

In the other example, Trump took to Truth Social to criticize a report about an immunity deal his former chief of staff Mark Meadows, a known witness in the case, allegedly reached with Smith. Trump said people who would take such a deal were "weaklings and cowards" and that he did not think Meadows "would lie about the Rigged and [stolen] 2020 Presidential Election."

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That comment could adversely affect Meadows and interfere with the legal process, Chutkan said, adding that it would "almost certainly" be a violation of her order if Trump had made the remark while the order was in effect.

It is unclear what the appellate court's timeline is for making a decision on Trump's appeal to Chutkan's order, but the court noted it has expedited the case, so a quick turnaround is expected following the oral arguments.