Trump’s New Appellate Argument about His 100 Million Imaginary Friends

Judge Tanya Chutkan issued her order denying Trump a stay of her gag order on October 29.

That was admittedly a Saturday. Nevertheless, it took Trump four days before he ran to the DC Circuit to cry about an emergency infringement on the First Amendment rights of him and his mob.

He took those four days even as he demanded that the DC Circuit — which had been expecting Trump’s initial brief on November 8 — rule on this motion by November 10.

The Court should stay the Gag Order pending appeal. In addition, President Trump respectfully requests that the Court enter a temporary administrative stay pending resolution of this motion and issue its ruling by November 10, 2023. If the Court denies this motion, President Trump requests that the Court extend its administrative stay for seven days to allow him to seek relief from the U.S. Supreme Court.

During those four days that Trump didn’t file for a stay, John Lauro found time to file three different things (one, two, three) in Judge Chutkan’s docket. In those four days, Trump posted a slew of attacks on Joe Biden, the 2020 election, and his prosecution (though admittedly many of the recent posts targeted Arthur Engoron), many of them attacks that — he claims — this gag prevents him from making.

I’ll leave it to smarter people to explain the posture that leaves this case.

What I’m more interested in are the arguments that Trump makes that should not withstand prolonged scrutiny, at least not at the DC Circuit, arguments that are surely designed to trigger the interest of Sam Alito and Clarence Thomas.

In his appeal, Trump argues — substantially for the first time — that his gag subjects him to viewpoint discrimination. There’s a very short section dedicated to the topic, citing an inapt precedent.

7. The Gag Order reflects forbidden viewpoint discrimination.

By forbidding speech that “target[s]” certain individuals, the Gag Order prohibits only (vaguely defined) negative speech about them. See infra, Part I.C. In Matal v. Tam, the Supreme Court held that prohibiting only negative or “disparaging” speech constitutes forbidden viewpoint discrimination. 582 U.S. 218, 243 (2017) (plurality opinion). Such a prohibition “constitutes viewpoint discrimination—a form of speech suppression so potent that it must be subject to rigorous constitutional scrutiny.” Id. at 247 (Kennedy, J., concurring in part and concurring in the judgment). To prohibit “disparaging” speech “reflects the Government’s disapproval of a subset of messages it finds offensive. This is the essence of viewpoint discrimination.” Id. at 249; see also R.A.V., 505 U.S. at 391- 92. The Gag Order violates these principles

Trump lards the rest of the discussion with claims that a gag tied to the crimes alleged against Trump amounts to censorship of right wing views.

Based this speculation, the district court entered a sweeping, viewpoint-based prior restraint on the core political speech of a major Presidential candidate, based solely on an unconstitutional “heckler’s veto.” The Gag Order violates the First Amendment rights of President Trump and over 100 million Americans who listen to him.


President Trump’s viewpoint and modes of expression resonate powerfully with tens of millions of Americans. The prosecution’s request for a Gag Order bristles with hostility to President Trump’s viewpoint and his relentless criticism of the government—including of the prosecution itself. The Gag Order embodies this unconstitutional hostility to President Trump’s viewpoint. It should be immediately stayed.


As a viewpoint-based prior restraint on the core political speech of a Presidential candidate to an audience of over 100 million Americans, the Gag Order is virtually per se invalid.

There are nine appearances of the word “viewpoint” in the entire appendix. All appear in Trump’s filings bidding for a stay, not his underlying opposition to the gag. But all of those also appear as part of an argument about political speech — an important argument, but one largely divorced from the circumstance of this gag, not as a free-standing argument about the free speech of nutjob right wingers.

That argument is closely related to (and builds on) another argument that Trump belatedly raised: that gagging his speech harms the First Amendment rights of his 100 million followers.

4. The Gag Order violates the rights of tens of millions of Americans to receive President Trump’s speech.

The First Amendment’s “protection afforded is to the communication, to its source and to its recipients both.” Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 756 (1976) (citing many cases); Packingham v. North Carolina, 582 U.S. 98, 104 (2017) (recognizing the right to “speak and listen, and then … speak and listen once more,” as a “fundamental principle of the First Amendment”); Red Lion Broad. Co. v. F.C.C., 395 U.S. 367, 390 (1969). A restriction on President Trump’s speech inflicts a reciprocal injury on the rights of over 100 million Americans who listen to him, irrespective of their political beliefs.

This right of listeners to receive President Trump’s message has its “fullest and most urgent application precisely to the conduct of campaigns for political office,” especially for the Presidency. Susan B. Anthony List, 573 U.S. at 162. Ford emphasized that, if Congressman Ford were silenced, “reciprocally, his constituents will have no access to the views of their congressman on this issue of undoubted public importance.” 830 F.2d at 601. Likewise, Brown stated that “[t]he urgency of a campaign … may well require that a candidate, for the benefit of the electorate as well as himself, have absolute freedom to discuss his qualifications….” 218 F.3d at 430.

In Trump’s appeal, he doesn’t cite evidence supporting this number, but — as I already noted — the underlying motion relies on garbage double counting of bots on the Twitter platform Trump no longer uses. Given that this argument is based on fraudulent numbers, it amounts to a defense of the First Amendment rights to listen of Trump’s imaginary friends, including the Russian bots the now-deceased Yevgeniy Prigozhin deployed to fuck with US politics.

The problem with this argument is, as DOJ noted in its response to Trump’s bid for a gag, Trump misrepresented the record on that point.

11 The defendant did not invoke these interests in his response to the Government’s motion for an order under Local Criminal Rule 57.7(c). And while the defendant claims to have invoked these interests at the hearing, only to have been unfairly interrupted by the Court (ECF No. 110 at 17), his citations mischaracterize the record. For example, he asserts (id.) that the Court interrupted him in response to his statement, “And what the government is proposing here is an order not just directed against President Trump but against the American electorate that wants to hear from President Trump under these circumstances.” The Court did not, in fact, interject in response to that point. See ECF No. 103 at 44. Rather, it was only several sentences later, after defense counsel returned to his oft-repeated talking point that “[t]his is the first time we’ve had a sitting administration prosecute a political opponent” that the Court responded, “I’m going to interrupt you. . . . You have said that. You have said it repeatedly. I have heard it.” Id. Likewise, the defendant asserts (ECF No. 110 at 17) that, when counsel said, “The American people are entitled to understand that and understand the consequences of that,” the Court simply responded, “No.” The Court did no such thing. After defense counsel’s comment, the Court asked why the defendant “is entitled to suggest that an appropriate punishment would be death.” ECF No. 103 at 59-60. When defense counsel invoked the First Amendment in response, the Court said, “No. As part of that. But again, the First Amendment protections must yield to the administration of justice and the protection of witnesses.” Id.

In a footnote of Judge Chutkan’s order denying the stay, she agreed.

Defendant’s Motion argues that his speech restrictions are inconsistent with the “right of listeners to receive President Trump’s message.” Motion to Stay at 15. Defendant did not squarely raise that argument in his opposition brief to the government’s original motion; the closest he came to identifying any authority for it was an unrelated “see also” citation to United States v. Ford, 830 F.2d 596, 598 (6th Cir. 1987), a case that he now quotes to support his right-of-listeners argument. Compare ECF No. 60 at 5, with Motion to Stay at 16. But the court expressly addressed and distinguished that case. Order at 2–3. In any event, the argument does not alter the fundamental principle that First Amendment rights, whether those of the speaker or the listener, may be curtailed to preclude statements that pose sufficiently grave threats to the integrity of judicial proceedings.

Undeterred by that footnote, Trump argues that Chutkan’s failure to address something he didn’t raise is her reversible error, not a waiver on his part.

Though the issue was raised repeatedly, A159-60, A165, A178; A47, A62-63, the district court gave the First Amendment rights of President Trump’s audiences no meaningful consideration. The Gag Order does not mention them, see A1-3, and the district court declined to consider them when President Trump raised them, e.g., A47, A62-63. That is reversible error.

I’ve linked two of the spots in the record, above, where John Lauro imagines he raised this — A47, which he cites twice, was in the oral arguments, not the underlying brief. None was a substantive argument about his imaginary 100 million friends. Here’s the appendix if you want to see if you can find what other things he is citing to.

There are other problems with this appeal. Trump doesn’t address the part of Chutkan’s order that explicitly permits Trump to attack, “the current administration or the Department of Justice.” Trump does not engage, at all, with the evidence DOJ submitted of expected trial witnesses testifying under oath about how mobs started threatening them after Trump tweeted mean things. Notably, Trump’s citations to the government’s examples of threats that Trump made between August 2 and September 26 doesn’t cite to the footnotes in the government response that reference the threat — made the day after the linked threat, “if you come after me I’m coming after you” — to Judge Chutkan herself.

By the time the Gag Order was entered, the case had been pending for almost three months, and President Trump had often spoken about it. The prosecution provided seventeen examples of public statements by President Trump between August 2 and September 26, 2023, that it considered objectionable. A140-46; A190- 91. However, it did not produce any evidence that any prosecutor, witness, or court staffer experienced “threats” or “harassment” after President Trump’s speech. Likewise, it did not produce any evidence that any witness or prosecutor felt threatened or intimidated by President Trump’s speech—however subjectively—during three months of President Trump’s public commentary on the case. See A140-46; A190-91.

Lauro claims DOJ didn’t present any evidence that anyone, including court staffers but not the judge herself, felt intimidated by threats that followed on Trump’s incitement and simply ignores that footnote. But someone in Judge Chutkan’s chambers alerted the Marshals after that threat, and the FBI deemed it sufficiently dangerous to arrest Abigail Jo Shry for making it.

So there are other problems with this appeal, exhibiting the same obstinate refusal to address the record as it stands that Judge Chutkan described in her opinion refusing the stay.

But the key dynamic, in my opinion, is that Trump is trying to refashion his argument to trigger the known biases of Sam Alito and Clarence Thomas. But he’s doing so — launching a bid to protect the First Amendment rights of his imaginary friends — after the fact.

This is not a frivolous argument. The legal arguments should bear the weight of the historic decision that ultimately will result.

But instead of making serious arguments, John Lauro has pitched the Supreme Court’s right wing justices an argument about Trump’s imaginary Twitter friends.

Update: A DC Circuit panel of 3 Democratic appointees (Obama, Obama, Biden) has stayed the gag and ordered and set an expedited briefing that is quick enough SCOTUS is unlikely to have any reason to intervene.

PER CURIAM ORDER [2025399] filed considering motion to stay case [2025149-2], ORDERED that the district court’s October 17, 2023, order be administratively stayed pending further order of the court. Further ordered that his case be expedited. setting briefing schedule: APPELLANT Brief due 11/08/2023, at 5:00 p.m.. APPENDIX due 11/08/2023, at 5:00 p.m.. APPELLEE Brief due on 11/14/2023, at 5:00 p.m., APPELLANT Reply Brief due 11/17/2023, at 12:00 p.m., scheduling oral argument on Monday, 11/20/2023. Before Judges: Millett, Pillard and Garcia. [23-3190] [Entered: 11/03/2023 05:06 PM]

68 replies
  1. Rugger_9 says:

    The scattershot legal briefs remind me of monkeys flinging poo and have about a much legally valid content. I agree that it’s for a specific audience, but am not so sure that a SCOTUS majority would agree. I think the real plan is to get cert and that is achievable, which would create a significant delay unless emergency processes are followed. Alito i particular has been willing to consider outright lying as valid evidence if the petitioner is someone he likes.

    It’s like what Kise was doing to distract from Eric’s testimony yesterday, creating a tempest in a teapot by claiming that Engoron’s clerk was leading him by the nose with her notes. The state attorney (Amer) made these pretty clear points:

    1. The number of notes passed within chambers is not a sign of bias
    2. Communications within chambers are shielded from all parties, and
    3. File a motion if you think this is an appeal point. Talking to the press won’t cover it.

    • gruntfuttock says:

      If an infinite number of monkeys flings an infinite amount of poo, do they eventually prove Trump is innocent of all charges?

  2. Amicus12 says:

    Per usual the post’s analysis above is spot on. On a related scheduling note, Judge Chutkan issued an order yesterday that begins the voir dire process for prospective jurors on February 9, 2024. Doc. 130 at 1.

  3. Ebenezer Scrooge says:

    Thomas and Alito are indeed likely to vote for certiorari on almost any Trump appeal that comes their way. But who are the other two votes? Roberts and Kavanagh appear sick of Trumpism. They would rather destroy the administrative state from the bench. I don’t think they’ll stretch the law to help Trump, especially since a denial of certiorari has no precedential effect. Barrett is showing some signs of being an institutionalist. Gorsuch? I’m not sure. He is as hard-right as they come, but isn’t quite as results-driven as the dynastic duo of Thomas & Alito.

    • Capemaydave says:

      Been wondering how, if at all, the Fed Soc. will respond to Trump’s move away therefrom:

      “At the start of Mr. Trump’s term, his administration relied on the influential Federalist Society, the conservative legal network whose members filled key executive branch legal roles and whose leader helped select his judicial nominations. But in a striking shift, Trump allies are building new recruiting pipelines separate from the Federalist Society.”

    • BRUCE F COLE says:

      Excellent synopsis. And T&A as the “dynastic duo,” also excellent.

      There’s a lot to be said about all the RW Justices, but none of them, other than Thomas and Alito in certain ways, are brick-stupid. They can all perceive (Thomas again excepted) that Trump is a malignant tumor on the Republic and that any hindrance to his legal excision from our body politic will carry historical derision, — akin almost to Taney’s — and more so as the *multiple and distinct* Trump trials continue to produce volumes of damning, widespread, and incontrovertible evidence.

      IOW, I think the odds are in the govt’s favor, especially in this situation where the SCOTUS isn’t actually teasing out the intricacies of whether and how the Constitution is a blueprint for fascism.

      • Adam Treat says:

        I think this faith being placed in Roberts, Kavanaugh, Barrett and to a lesser extent Gorsuch is extremely misplaced. All the above need to issue cert is a permission structure they can hide behind. Trump is doing his best to provide such a permission structure and I don’t doubt for a second that they are itching to see if it is sufficient to cover their asses.

        • bmaz says:

          Oh I don’t know about that. If there is a strong order out of DC Circuit, I’m not sure Scotus really wants this.

        • earlofhuntingdon says:

          It’s not as if the S.Ct. won’t have other opportunities to intervene if they want to. Trump will be filling their in-box with appeals for the next two years.

        • Ginevra diBenci says:

          If this is truly Trump’s “best,” and it may be, it doesn’t seem strongly enough argued to get the other RW judges on board. The three that Trump anointed have not proved eager to help him, and this question (of the 1A rights of his trillions of followers) has not been fleshed out sufficiently to get them on board.

          I hope.

  4. P J Evans says:

    The gag order isn’t covering his 100 million invisible friends (who are supporting him in e-mails, and I’d guess 99 million are bots).

  5. Peterr says:

    Has the NYT Pitchbot filed an amicus brief yet, supporting the assertion that gagging Trump like this harms the Pitchbot and prevents it from credibly doing its job?

    • earlofhuntingdon says:

      Never too late. But it would be useful to do it in response to another, inevitable threat from Trump.

      • emptywheel says:

        Right. I think she wisely did not do so in response to DOJ’s request. But it’s always an option.

        • SteveBev says:

          I suspect that the ‘request’ was not made in the hope or anticipation of immediate action but was more of a warning shot, intended mainly to lay a foundation for subsequent substantive action.

  6. vigetnovus says:

    Interesting. McFadden threw the book (in relative terms) at Klein….70 months!!!!

    The DOJ wanted 10 years, but wow, that’s still a hefty sentence from McFadden. Not sure what the guidelines called for here though.

    He probably knew he couldn’t seriously look past assault. Or maybe he’s really worried about the pending DOJ appeal of other J6 sentences…

    [Welcome back to emptywheel. Please use the same username and email address each time you comment so that community members get to know you. You published this under your old username “viget”; I’ve corrected it this once. Please clear your browser cache and make sure to enter your newer site standard-compliant username. Thanks. /~Rayne]

    • bmaz says:

      Nobody is worried about DOJ appeals of sentences, they will likely stand up just fine in light of the discretion US v. Booker allows.

    • CaptainCondorcet says:

      Would you be willing to give a brief summary of what exactly that means? It looks like an accurate summarization of the local rule. Is such a move “petty”?

        • CaptainCondorcet says:

          Thanks for that. Can’t say I’m surprised. She’s made her feelings towards SCO about as abundantly clear as Engoron has about Trump’s counsel.

        • Ithaqua0 says:

          Apparently, according to TPM, the SCO filed it as a “notice” and she “construed it as” (TPM’s words) a “notice of supplemental authority,” to which the 200 word limit applies. If so, and her construction is the stretch TPM presented it as, well, I don’t need to comment.

      • earlofhuntingdon says:

        The words of the local rule are plain, assuming Cannon has cited the correct rule. Cannon abused them as a placeholder for not wanting to be told in writing that Trump was manipulating her – as he obviously had done – and the court’s schedule.

        A more typical response would have been non-committally to acknowledge the prosecution’s concern and remind them of what she perceives as the rule and its word limit. She consistently takes a different tone when addressing Trump’s counsel.

      • bmaz says:

        I am fine with Twitter, it works fine for me and without any of the crapo people commonly whinge about. And, no, Musk does not make one dime off of me.

        • Bay State Lurker 23 says:

          A good reason for people without your setup to use the workarounds is that it’s no longer possible to view threaded comments and replies without an account, at least on mobile.

          Thanks for giving your take on this,bmaz. How petty can this get without reprimand?

  7. WilliamOckham says:

    I think it’s pretty telling that Trump has his lawyers in the Jan6 case making these frivolous arguments AT THE SAME TIME as his lawyers in the NY case are demonstrating the lengths they will go to disrupt a trial with intimidation and violent rhetoric.

    Trump doesn’t have a legal strategy. He has some legal window dressing for his ongoing violent assault on American democracy. It’s time to start naming it clearly.

    • Fraud Guy says:

      But wouldn’t that tarnish the discourse and kick some reporters off of the stenography beat?

      Well, then, carry on!

    • WilliamOckham says:

      And the DC Circuit Court gives Trump his administrative stay, i.e. at least 17 more days of openly fomenting anger against the special prosecutor and witnesses. I get that this is fairly unremarkable in the normal course of things. I just think we’re so far off the normal course that this stay is unfortunate.

      • emptywheel says:

        DC Circuit did this to ensure SCOTUS had no reason to intervene. He can’t claim he is being 1A injured in the meantime and (as I noted in my update), his brief is due when it already was.

        Ensuring that DC Circuit judges review this before Alito gets his shot will be more than worth the 3 weeks of attacks.

        • P’villain says:

          Yes, this seems very much to be a wise course of action, and a stark contrast to the new gag order in the NY civil action, which will overheat further next week if Trump testifies as scheduled.

        • P J Evans says:

          The judge in NY apparently had had enough of the lawyers taking potshots at his (very experienced) clerk and how he runs HIS courtroom.

        • Bay State Lurker 23 says:

          Every single thing anyone does either gives Trump his narrative or allows Trump to do what he wants. Better to do the right thing than nothing, and elevate voices that clear away the flying monkeys.

        • Peterr says:

          And how the DC appellate panel rules — and how they support their judgement in writing their opinion — will go a long way toward how SCOTUS handles this when Trump files his application for cert. A solid smackdown by the DC Circuit could help SCOTUS issue a simple denial of cert, perhaps with a short per curiam opinion indicating that SCOTUS believes the DC circuit got it right.

        • Ginevra diBenci says:

          This brief comment provides more information about the actual circumstances surrounding that DC Circuit stay than anything I heard on TV last night. Now I understand exactly what’s going on and why. Thanks as always, EW.

        • Rugger_9 says:

          Well, the First Rule of Dirtballs applies here, since Defendant-1 will undoubtedly post the trash talk and go off in his rallies over the next two-plus weeks. After all, SC Smith referred to prior statements made elsewhere in seeking the DC gag order in the first place.

          All Defendant-1 will manage to do here is provide more evidence for Smith to add to his filings to the DCC and maybe SCOTUS, with the added benefit that the FedSoc SCOTUS reactionaries will find it harder to say it’s just FA stuff. I only hope no one gets hurt or worse because of this delay.

        • BRUCE F COLE says:

          Not that he’s capable of it, but he ought to be fervently hoping that one of his “rhetorical” targets doesn’t get physically attacked in that meantime.

        • dopefish says:

          I assume SCO could bring extra charges against Trump later for witness tampering or intimidation?

          Most of the witnesses are for the DC case, so I suppose they could charge him in DC for that conduct?

  8. OnKilter says:

    Weirdly, the last sentence in the notice is
    “This Court should allow itself to be manipulated in this fashion.”

    • CaptainCondorcet says:

      Yeah, it was a hell of a typo from an otherwise pretty clean shop. And I suspect it even further rubbed Judge Cannon the wrong way that not only would they include this indirect but very clear accusation, but that they also “couldn’t be bothered” to write it correctly. As if Trump’s counsel has been flawless in all of their filings…

  9. John Paul Jones says:

    Can someone provide a link to the stay? I’ve looked on CourtListener and have struck out; according to them, none of the judges listed have any cases coming up, which can’t be true.

    • earlofhuntingdon says:

      Trump’s lawyers seem unwilling to use the e-discovery services routinely used by litigants, even those offered by their own litigation support vendor.

      The defendant’s [Trump’s] continued attempt to portray the volume and form of discovery as extraordinary and unduly burdensome in the face of modern electronic discovery and his substantial resources contrasts with reality.

      The claim that defendant hasn’t the resources to review discovery within the time frame he already agreed to is “a delay tactic.” As for those resources, unavailable to all but the wealthiest individual and largest corporate defendants:

      For this case, the defendant has employed at least three law firms, five counsel of record, three additional counsel of record in the D.C. Circuit, another attorney who as of recently sits at counsel table despite not having entered his appearance, additional undefined back-office support from other attorneys, and an outside e-discovery vendor. [footnote omitted]

      Trump wants to delay, using a framework that essentially leaves the scheduling of this case in Trump’s hands. I don’t suspect Judge Chutkan will respond well to that. She has already moved up the beginning of jury selection to February 4th.

      • 2Cats2Furious says:

        Judge Chutkan is a professional, but I imagine her response to Trump’s latest delay tactic might generate a few harsh words. The original deadline for pre-trial motions (excluding motions in limine and to suppress) was October 9. Trump asked for a 60-day extension to December 8. Chutkan gave them an additional 2 weeks (to October 23) for additional motions to dismiss, and and additional month (to November 9) for discovery motions.

        Now they’re back asking for an additional 3 MONTHS (to February 9), on top of the 1-month extension they already received. I say she gives them an additional week and be done with it.

        And the absolute chutzpah of asking for 10 days to file discovery motions after what will undoubtedly be a useless “meet and confer” – without requesting a deadline by which such conference with the SCO must take place – is mind blowing. The SCO was correct to point out that the parties have already “conferred” in that they’ve responded to Trump’s discovery letters, so if Trump has a discovery motion to file, then just BRING IT already.

        Judge Chutkan isn’t moving the March 4 trial date (unless forced to do so via a stay imposed by an appellate court, while Trump’s bullshit “absolute immunity” defense is considered on appeal).

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