By Charlie Savage
The full federal appeals court in Washington on Tuesday rejected former President Donald Trump’s bid to lift a gag order imposed on him in the criminal case in which he stands accused of trying to subvert the results of the 2020 election.
The terse ruling, issued on behalf of the 11 judges on the U.S. Court of Appeals for the District of Columbia Circuit, leaves Trump with only the option of appealing to the Supreme Court if he wants to keep fighting the gag order, which restricts his ability to publicly criticize certain people involved in the legal proceeding.
D. John Sauer, a lawyer for Trump who has been handling appeals, did not immediately respond to a request for comment. Peter Carr, a spokesperson for Jack Smith, the special counsel overseeing the federal prosecution of Trump, declined to comment.
The dispute is one of the extraordinary legal fights spinning off from the cases against Trump. It has pit the First Amendment rights of a former president and the leading candidate for the 2024 Republican presidential nomination against fears that his hostile rhetoric targeting people involved in the matter could spur supporters to acts of violence.
The judge overseeing the election case, Tanya Chutkan of U.S. District Court, first imposed a gag order on Trump in October. It restricted him from making public statements attacking witnesses and specific prosecutors or court staff members — but not herself — in the case. Trump appealed, saying the order violated his First Amendment rights.
In December, a three-judge panel of the appeals court upheld the order but narrowed its terms, including to allow him to keep attacking one of his main targets: Smith, the special counsel. Trump then asked the full D.C. Circuit to intervene and rehear the matter, seeking a further narrowing or elimination of the order.
In their unsigned order Tuesday, the 11 full-time judges on the court issued no written opinion. The order said only that none of the judges had requested a vote on the matter.
The D.C. Circuit includes seven appointees of Democratic presidents and four by Republican ones, three of whom — Gregory G. Katsas, Neomi Rao and Justin R. Walker — were appointed by Trump. The fourth Republican appointee, Karen L. Henderson, who was put on the court by President George H.W. Bush, has voted in Trump’s favor in several other legal disputes.
Henderson, along with two appointees of President Joe Biden, is also part of a three-judge panel that is considering a separate issue arising from the election case: Trump’s claim that he is immune from being charged over the acts he took to overturn the 2020 election results while he was president.
That panel heard arguments in that case on Jan. 9, and there is no deadline for the judges to issue a ruling. As the senior judge on the panel, Henderson has the right to write the opinion if she is in the majority. If Trump were to lose, he is expected to keep appealing to the Supreme Court.
Chutkan had scheduled a March 4 start date for the trial, but has paused pretrial proceedings because of Trump’s appeal of his immunity claim. Trump has frequently pursued a strategy of delay in litigation, and if he becomes president again before any trial, he could use his executive powers to scuttle the federal cases against him.