The DC Circuit has reimposed most of the gag that Judge Chutkan imposed on Trump.

Like any other criminal defendant, Mr. Trump has a constitutional right to speak. And his millions of supporters, as well as his millions of detractors, have a right to hear what he has to say. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756–757 (1976). Also like any other criminal defendant, Mr. Trump does not have an unlimited right to speak. “Although litigants do not surrender their First Amendment rights at the courthouse door, those rights may be subordinated to other interests that arise in [the trial] setting.” Seattle Times, 467 U.S. at 32 n.18 (formatting modified). In particular, the public has a compelling interest in ensuring that the criminal proceeding against Mr. Trump is not obstructed, hindered, or tainted, but is fairly conducted and resolved according to the judgment of an impartial jury based on only the evidence introduced in the courtroom. See Gentile, 501 U.S. at 1075; Wade, 336 U.S. at 689.

While Trump is free to malign Jack Smith, he’s not free to malign Smith’s spouse, other prosecutors, Judge Chutkan’s staff or — most importantly — witnesses.

It’s about dinner here — I’ll come back and pull some of the opinion in a bit.

Update: Millett describes Trump’s attacks on social media, “laundering communications.”

There is no question that Mr. Trump could not have said directly to Mark Meadows, former Vice President Pence, or former Georgia Lieutenant Governor Duncan any of the statements he posted on social media about their potential discussions with the Special Counsel or grand-jury testimony, and the consequences that would follow. Yet the district court’s prohibition on Mr. Trump’s direct communications with known witnesses would mean little if he can evade it by making the same statements to a crowd, knowing or expecting that a witness will get the message. Cf. Sheppard, 384 U.S. at 359 (restrictions on witnesses observing other witnesses’ testimony mean nothing if “the full verbatim testimony [is] available to them in the press”); Estes, 381 U.S. at 547.

Mr. Trump’s counsel conceded at oral argument that the former President speaking about the case “with a megaphone, knowing that [a] witness is in the audience” would likely present the “same scenario” as Mr. Trump’s calling that witness directly, in violation of his conditions of release. Oral Arg. Tr. 33:12–17. So too if the defendant posts a message on “social media knowing that [witness] is a social media follower of his,” id. 33:20–23, or that the message will otherwise likely reach the witness. In each of these scenarios, the defendant’s speech about witness testimony or cooperation imperils the availability, content, and integrity of witness testimony.

Accordingly, the district court had the authority to prevent Mr. Trump from laundering communications concerning witnesses and addressing their potential trial participation through social media postings or other public comments.

The opinion distinguishes a heckler’s veto from Trump’s incitement.

Second, Mr. Trump objects that holding him responsible for his listeners’ responses to his speech unconstitutionally imposes a “classic heckler’s veto,” “regardless of how predictable * * * [Mr. Trump’s supporters’] unruly reactions might be.” Trump Br. 37–38; see Trump Br. 36–39. Not so.

To start, that argument ignores the significant risk of harm caused by Mr. Trump’s own messaging to known or potential witnesses about their participation in the criminal justice process and his menacing comments about trial participants and staff.

The claim also misunderstands the heckler’s veto doctrine. That doctrine prohibits restraining speech on the grounds that it “might offend a hostile mob” hearing the message, Forsyth County v. Nationalist Movement, 505 U.S. 123, 134–135 (1992) (emphasis added), or because its audience might express “hostility to” the message, Cox, 379 U.S. at 551. The harm the district court identified here was not that some members of the public who oppose Mr. Trump’s message might react violently and try to shut down his speech. Cf. National Socialist Party of America v. Village of Skokie, 432 U.S. 43, 43–44 (1977). The concern was instead “how predictable” it has become, Trump Br. 38, that some (but certainly not all, or even many) of Mr. Trump’s followers will act minaciously in response to his words.

Of course, the First Amendment generally does not allow speech to be restricted because of some enthusiastic audience members’ reactions. Outside of a judicial proceeding, ordinarily only speech that rises to the level of incitement of the audience can be banned. See Brandenburg v. Ohio, 395 U.S. 444, 448–449 (1969) (striking down law that failed to distinguish “mere advocacy” from “incitement to imminent lawless action”).

But within a judicial proceeding, a trial court’s duty to protect the functioning of the criminal trial process is not cabined by the incitement doctrine. Sheppard holds that courts may, and sometimes must, limit the speech of trial participants to prevent the prejudice to the trial process caused by third parties. Sheppard involved a criminal trial beset by suffocating press coverage and publicity. 384 U.S. at 358. The press regularly reported on evidence leaked to them by both sides, even though such evidence was never offered into evidence in court. Id. at 360–361.

The Supreme Court held that, as a means of addressing and averting harm to the criminal justice process, the trial court should have “proscribed extrajudicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters[.]” Id. at 361. Had the trial court done so, “the news media would have soon learned to be content with the task of reporting the case as it unfolded in the courtroom— not pieced together from extrajudicial statements.” Id. at 362. In other words, the Supreme Court explained that a protective order restricting trial participants’ speech should have been entered in Sheppard not only because the parties’ expression was itself obstructive, but even more so because outsiders’ reactions and responses to that speech also threatened the integrity of the trial process. At no point in Sheppard did the Supreme Court even hint that evidence demonstrating that the parties were already inciting interfering press coverage would have been needed before the court could act.

So too here. 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 district court appropriately found that those threats and harassment undermine the integrity of this criminal proceeding by communicating directly or indirectly with witnesses and potential witnesses about their testimony, evidence, and cooperation in the justice process. They also impede the administration of justice by exposing counsel and members of the court’s and counsel’s staffs to fear and intimidating pressure. The First Amendment does not afford trial participants, including defendants, free rein to use their knowledge or position within the trial as a tool for encumbering the judicial process.

I had to look up, “minaciously,” which is not at all “quixotic.”

118 replies
  1. WilliamOckham says:

    I think the Circuit Court’s opinion is absolute disaster. All it does is create a roadmap for Trump to intimidate witnesses. Apparently, the appellate court thinks it’s just hunky dory for Trump to generate death threats against witnesses as long as he doesn’t mention their testimony.

    They had their chance to decide whether or not the rule of law would apply to Trump and they picked “sometimes”.

    • Rugger_9 says:

      The restored gag is a most important piece, and witness intimidation is already against the law so it’s not as bad as it could have been.

      I have no doubt that Defendant-1 will prove the First Law of Dirtballs yet again and give the government another opportunity to make him STFU. Perhaps with jail time too since it’s likely he’ll break the law doing so.

    • Ebenezer Scrooge says:

      Yes. And the opinion also applies an intent test to remarks against non-witnesses not named Jack Smith. Trump will have great fun wearing Chutkan down with allusive remarks.

      • Fraud Guy says:

        Well, here’s his intent from his “truth”:

        “In other words, people can speak violently and viciously against me, or attack me in any form, but I am not allowed to respond, in kind.”

        Any speech against him is an attack, and he should be able to respond.

        • P J Evans says:

          He is the center and sole owner of his own universe, and the rest of us are trespassers who must be persecuted.

          • SteveBev says:


            Any and all attacks on him are ipso facto “violent and vicious”

            He claims to be entitled in response to be as vicious and violent as he deems necessary

            • Ginevra diBenci says:

              The truth is a violent and vicious attack against Donald Trump. That’s what it comes down to: anyone asserting a provable fact is victimizing Trump and, crucially, justifying his own vicious and violent response.

    • Myra-Bo-Byra says:

      IANAL but our judiciary continues to dismay. Trump cannot argue facts or law, so he bangs the table, yells like hell, and uses the judiciary’s glacial pace into a defense weapon. His strategy has been obvious for months: delay trials and win the election. The only good thing I can say about this decision is that at least it didn’t take a month. But it reminds me of the scene in Jurassic Park, where a pathetic goat is staked out for the T-Rex. Sorry, but judges armed with batleths and pain sticks are what’s needed here.

      • bmaz says:

        So, you are “IANAL”, but have you ever even been to a court? I go to them all the time, and they work just fine, including “our judiciary”. Like most things human, they are sometimes inconsistent, but overall they work. If you think the things discussed here on this blog are the totality of law, judges and courts, you are sadly mistaken. Get a grip.

        • Novembirdie says:

          Exactly so, bmaz. IANAL but I have been in court. The court staff, judge and lawyers are doing serious business. There’s procedures and protocols which work fine.

        • Rwood0808 says:

          “They work just fine” !?! Seriously?

          Trump has been a criminal his entire life. He enrolled in Grifter-U at the ripe old age of ten with his father as head instructor. The courts have had 60+ years and thousands of chances to hold him accountable and either failed miserably or just plain chose not to hold him accountable. The results of that inaction is what we have today.

          Every time you berate someone who takes a jab at the precious justice system and ask your favorite “Oh, have YOU ever tried a case!?!” maybe have a few explanations as to why trump got a free pass for the last several decades.

          When they write the book on this farse the title will be “Missed opportunities; how the justice department failed to hold a career criminal accountable and allowed him to become dictator of the United States”.

          • bmaz says:

            Yes, seriously. The Trump shit you follow is about .00001 percent of what counts for law in the US, if even that much. Get your head out.

            • Rwood0808 says:

              One, I don’t comment just to push your button Bmaz, I comment when I see you saying something that does not reflect the situation outside the legal bubble you live in. I follow the same websites as the other regulars here.

              Two, my head is out, and I clearly see things that you don’t. I follow EmptyWheel to monitor the status of the trump cases in the legal world, not the campaign he is running both in and out of the courtroom, as they are very much two different worlds. To monitor that you have to step into their world.

              The first rule of warfare is “know your enemy”. I don’t think you spend enough, if any, time inside the head of a trump supporter. If you watch the propaganda they are fed it’s easy to see what it is they are being convinced of. To them these trials are just more proof that what they are told is true, that trump is the victim of a political attack and the DOJ has been weaponized against him. The fact that the justice system has failed for years to take him down helps them add to that myth. It’s an easy spin: “Seven years they’ve been trying this BS! If they really had something he’d be in jail already! This is a witch hunt!”

              They view these cases the exact same way we do the Hunter Biden case. J6 is their “Benghazi!”

              What the disgusted independents, and many-many others, are hearing is “Yes, the justice system has let trump run wild for decades, but not this time, this time it’ll work. This time it’s different. Trust me. We got him. Wolf-Wolf!”

              Why should anyone believe that when there is zero evidence of it in the past?

              As William pointed out, the court not only caved and provided a half-ass ruling, but they also gave trump a roadmap for how to continue his attacks while staying in the lines. And you still wonder why voters are fed up with the system? Its that same anger that trump channels into his psyops campaign.

              And it’s working.

              • bmaz says:

                I do not give a shit about your “buttons”. Take them elsewhere. And I care not what other websites you follow. Stuff that. As to what people should “follow”, try following the law. The rest of your comment is garbage.

                • mike_27DEC2018_0226h says:

                  Let’s keep the tone civil. Everyone has something valuable to offer.

                  [Welcome to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Because your username is far too short it will be temporarily changed to match the date/time of your first known comment until you have a new compliant username. You have previously commented here as “mike in san diego,” “Walluso,” “Mike,” and now “mike” (letter case and spacing matters). Only one of those names meets the site’s standard. Thanks. /~Rayne]

              • earthworm says:

                I hope this is a valid point to make, without contradicting bmaz’ years of law practice:
                Trump’s tactics work elsewhere; it is a well-rehearsed playbook, currently being used to contest the August Guatemala presidential election.
                The progressive candidate Arevalo won fair and square, but is now being subjected to the “fraudulent election” playbook, despite what has been called a clean and honest election by a number of international rapporteurs.
                I am not excusing the conduct of Trump supporters. However, critical thinking is way down on the list of prized curricula in American schools. “Rule of law” is a trope that can be cited by both sides, and to the civilians in such situations it can indeed be head-spinning and mind-fucking, like all propaganda (it is meant to be).

                • bmaz says:

                  I’m sorry, the “Rule Of Law” is a little more than a “trope”. Try going to an actual court instead of blowing things on the internet.

                  • Knowatall says:

                    And, yet, those of us who have spent time in court (both civil and criminal) have experienced the capriciousness and sometimes downright illegal acts of judges. The system doesn’t do a great job of self-examination/correction, and this, I believe, is the main reason for immense frustration with the pace and form of the Trump cases.

                  • earthworm says:

                    i apologize, perhaps “trope” is incorrect phrase to use.
                    wikipedia characterizes “rule of law” as an ideal:
                    “The rule of law is a political ideal that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders.”
                    yet we are continually exposed to different protagonists’ arrogating to themselves different claims of “rule of law.”(they’re all doing “god’s work,” right?)

  2. matt fischer says:

    Judge Millett’s use of the expression “laundering communications” crystalizes the issue well.

        • Missing George Carlin says:

          I’m so depressed by all of this I just ate a tide pod!

          [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 have (40) comments published here as “missinggeorgecarlin” which is not the same as “Missing George Carlin.” Letter case and spaces matter; please revert to your original username. /~Rayne]

          • William Allen Simpson (DayDreamer) says:

            Rayne, in this day and age, this seems a bit over the top. A couple of decades ago, wikipedia software had the same problem. So I had to register Daydreamer, DayDreamer, Day dreamer, Day Dreamer, WilliamAllenSimpson and William Allen Simpson. Eventually, we fixed the software to check for near aliases, and use redirects to combine into the most recent desired username. Isn’t there some simple software solution here?

            Also, although I’ve used my username fairly consistently here (and everywhere) for years, I’m still moderated anyway.

              • William Allen Simpson (DayDreamer) says:

                I’m merely asking whether this software vendor has a technical solution, similar to what was implemented circa 2006-07 for wikipedia. Would save a lot of Rayne’s time.

                Also, I’ve personally known Marcie since the Dean campaign…. We’ve served as poll watchers together, and we put together the petition to the DNC that allowed Obama to have our Michigan votes counted.

                • bmaz says:

                  Lol, you know Marcy so well that you can’t even spell her name correctly? We do not need your help and bitching.

                • emptywheel says:

                  We don’t discuss why we moderate why we do in public. Suffice it to say though that we wouldn’t still have a comments section if we relied on OTS moderator solutions.

                  Mike Masnick talks a lot about this too. Keeping a comments section alive as long as you and I have known each other takes a lot of work.

                • Matt___B says:

                  I don’t know what form of moderation the Intercept used when they started their website in 2014. But whatever it was, it didn’t work: their comments section quickly became a cesspool of right-wing trolls and devotees of Glenn Greenwald cultishly defending him, even after he parted ways with them. They shut down the comments section on all articles altogether a couple of years ago. So if that’s not an indication of the behind-the-scenes work required to keep a public mom-and-pop blog comments section ongoing and viable, then I don’t know what is. The Intercept had corporate resources from Pierre Omidyar and First Look, but still they threw in the towel on their user comments capabilities…

            • Rayne says:

              One critically flawed assumption you make about commenting systems — especially references to “off the shelf” (OTS) packages — is that users’ privacy and security is a non-issue. Perhaps it isn’t for Wikipedia which was launched by a American-British citizen*, but for this particular site it is one of the most important issues, especially when personal privacy and national security are topics covered in a substantive number of posts. It’s also important when it comes to operating transnationally — so far we have not run afoul of EU’s GDPR, because the comment system here is as small and lean as possible. I’m going to avoid detail but tell you that your suggestions do not solve the problems unique to this site’s threat matrix but instead create new challenges.

              Consider the nature of identity spoofing in the age of AI with the widespread use of VPNs — because you clearly haven’t done so.

              As for you personally: the words “Simpson” and “DayDreamer” and “Dreamer” regardless of case and spacing do not appear on the moderation list (the names “William” and “Allen” would be impossible to filter). If you find your comments going into auto-moderation, it may be some other keyword you are using in your comments or another variable which is the trigger. You’ll simply have to wait for a human volunteer moderator to clear it. If you don’t like this, you do not need to comment — you are under no obligation, and neither are we.

              *Adder: Wales leaning into running platforms in UK is why I don’t and won’t use he launched — laws about speech and intellectual property are different as are laws about sensitive content and privacy. Nope.

              • Kenster42 says:

                Here to add my thanks to Marcy, Rayne and Bmaz for their moderation efforts. While I don’t always agree with them and take my medicine when they push back on my statements, I always feel safe with my commentary here in the sense that it will be viewed on the merits and judged accordingly. Also noting for record (because I am involved with it for work) that GDPR compliance in the EU and UK is no joke – they don’t fool around.

                • nord dakota says:

                  I work for a multinational (French) which contracts to a multinational (UK) and we have to do the GDPR training for each of those companies every year. I also do office work for my son’s business as a preferred vendor with a multination (US) and the last preferred provider agreement we got hit with this long new section which had everyone baffled (our guys dfo on site network installations, mostly in the Midwest but occasionally farther afield) and looked at it and oh, I know what this is about, basically to indicate we had policies and practices regarding data export/import and specifically personal data.

  3. earlofhuntingdon says:

    Per Judge Millet:

    [W]e hold that some aspects of the defendant’s speech pose a significant and imminent risk to the fair and orderly adjudication of this criminal proceeding, which justified protective action by the district court….

    [W]e affirm the Order to the extent it prohibits all parties and their counsel from making or directing others to make public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding. The Order is also affirmed to the extent it prohibits all parties and their counsel from making or directing others to make public statements about—(1) counsel in the case other than the Special Counsel, (2) members of the court’s staff and counsel’s staffs, or (3) the family members of any counsel or staff member—if those statements are made with the intent to materially interfere with, or to cause others to materially interfere with, counsel’s or staff’s work in this criminal case, or with the knowledge that such interference is highly likely to result. We vacate the Order to the extent it covers speech beyond those specified categories….

    Mr. Trump is free to make statements criticizing the current administration, the Department of Justice, and the Special Counsel, as well as statements that this prosecution is politically motivated or that he is innocent of the charges against him.

    The DC Circuit may have opened a can of worms with its “intent to materially interfere with” or “highly likely” to interfere with counsel’s or staff’s work in this criminal case. Mr. Lauro and his co-counsel will “likely” be exploring the peripheral limits of that language by the end of the day.

    • SteveBev says:

      The passage you cite does seem to show the Appellate Court is creating an unnecessarily complicated basis for the DC to assess compliance with the order…

      But hasn’t it also cleared the way for straightforward inferences to be made as to Trump’s knowledge, intent and the question of materiality etc by the passage already quoted by EW? Specifically :

      “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 district court appropriately found that those threats and harassment undermine the integrity of this criminal proceeding by communicating directly or indirectly with witnesses and potential witnesses about their testimony, evidence, and cooperation in the justice process.

      They also impede the administration of justice by exposing counsel and members of the court’s and counsel’s staffs to fear and intimidating pressure”

      Would it not be enough for Chutkan to find that troubling future statements are in the same vein as those already castigated by her, and upheld as being beyond the pale by the DC Circuit, and in the light of her and their warnings, knowledge and intent may be, and should be readily inferred?

      But, perhaps I am looking too hard for silver linings in the other parts of the opinion to mitigate the difficulties the that the mens rea modifications present

      • SteveBev says:

        I read the passage pp52-53 and fn 18 as an invitation to Chutkan to revisit jury contamination as an additional rationale for gagging Trump if/when he continues to vent in a similar fashion.

        • Capemaydave says:


          An invitation.

          And, more importantly, a statement affirming the need for a pre-election trial end.

          • SteveBev says:

            Yes the entire discussion on delay pp 47-48 is very important IMHO
            Though couched in terms of a rejection of Trump’s argument that delay of trial would be a less restrictive measure, the findings and premises of the court’s reasoning amount to a clear recognition of Trump’s strategy to create delays in the process and manufacture advantages for himself by doing so, to the clear detriment of the public interest in an appropriately swift and fair determination of the charges.

            And the warning on p18 para 2 is important here

            “Mr Trump’s right to a fair trial does not give him the right to the opposite-a trial prejudiced in his favour”

            (Mutatis Mutandis with regard to a speedy trial.)

            “The public has its own compelling interests in a fair trial resulting in just judgements”

      • earlofhuntingdon says:

        I agree. But at least one of Trump’s five defense counsel in this case are likely to be preparing appeals, describing how his most recent threat does not demonstrate the required intent or likelihood to interfere with this criminal case, but is, instead, routine free speech of the kind one could find two or three Ivy League presidents to defend before Congress. Lauro & Co. will predictably be exploring the limits of frivolous as well as intent.

        • P’villain says:

          Hard to believe that interlocutory appeal would be allowed on any actions Chutken subsequently takes pursuant to this order to maintain order and control over her courtroom and the parties before her. I was under the impression that a request for en banc review of and a petition for certiorari from this ruling were the only intra-trial appellate wiggles the defendant had left on this front.

          • bmaz says:

            It’s funny, “interlocutory appeals” used to be some of the dirtiest words in law. Now it seems to be accepted and regular.

      • earlofhuntingdon says:

        Just wondered whether you’ve ever had an expert witness put in 650 hours to prepare for their trial testimony.

  4. Tech Support says:

    I was a little surprised to read the post and then come down to the comments to find the opinion being panned. The court did not mince words when it came to describing Trump’s words and actions, using terms like “menacing” and “dangerous.”

    But I totally get the concern over the ambiguous ways in which the gag has been dialed back a bit, creating a predictable space for the kind of frustrating, boundary-seeking behavior usually associated with toddlers.

  5. Fraud Guy says:

    Reading as a non-lawyer, this almost side comment on p.48 caught my eye, especially as Trump continues to try to delay this trial:

    “In this case, the general election is almost a year away, and will long postdate the trial in this case.”

    I know that this is not core to the opinion, but at the end of the section discussing why a post-election trial date is not reasonable, this almost feels like a shot across the bow for any motions to stay or delay the case while working through all the pre-trial motions.

  6. WilliamOckham says:

    Trump’s right to a fair trial does not give him “the
    right to insist upon the opposite of that right”—that is, a trial
    prejudiced in his favor.

    (p. 18)

    And yet, as far as I can tell, the decision guarantees Trump (and only Trump) exactly that. It allows him to intimidate witnesses and quite literally tells him how to do it within the scope of the gag order (just don’t mention the trial). This isn’t some hypothetical. Remember Trump’s death threat rant about Mark Milley, who is a potential witness against Trump in this case (and others). That’s perfectly OK under the revised gag order.

    • earlofhuntingdon says:

      You raise a good point, which might be called the Strangers on a Train problem, except that Trump plays the roles of both Guy and Bruno. It arises owing to the multiple trials Trump is trying to manage.

      Trump could, at least temporarily, get around a gag order by using his pronouncements in one trial to threaten opponents in another trial. It’s a little like circular check kiting. Eventually, the judges will catch up with him, but it might work for a while. But it’s the sort of gambit Trump has engaged in his whole career.

    • montysep says:

      Trump’s Conditions of Release expressly prohibit tampering with witnesses and intimidation of witnesses.

      I welcome the nincompoop Trump “testing” the limits of the gag order and exposing himself to more criminal charges. How often have we seen own words come back to haunt him. Go ahead Trump take a few more mulligans. The Special Counsel is taking notes.

  7. bawiggans says:

    What caught my eye in the citing of Sheppard was language that did not speak of the court merely being permitted to restrict some kinds of speech but that it might be affirmatively obligated to do so in order to ensure a fair trial.

    “But within a judicial proceeding, a trial court’s duty to protect the functioning of the criminal trial process is not cabined by the incitement doctrine. Sheppard holds that courts may, and sometimes must , limit the speech of trial participants to prevent the prejudice to the trial process caused by third parties.”

    • David F. Snyder says:

      Good. Not that the people who need to hear it will hear it. Do you think he has a good shot at MTD? Because he’s making a pretty blunt point: “First, U.S. Attorney Weiss bowed to Republican pressure to file unprecedented and unconstitutional gun charges to renege on a non-prosecution resolution. Now, after five years of investigating with no new evidence – and two years after Hunter paid his taxes in full – the U.S. Attorney has piled on nine new charges when he had agreed just months ago to resolve this matter with a pair of misdemeanors.”

  8. Peterr says:

    Yet the district court’s prohibition on Mr. Trump’s direct communications with known witnesses would mean little if he can evade it by making the same statements to a crowd, knowing or expecting that a witness will get the message.


    In all of the cases involving Trump communicating with witnesses, this has been the huge loophole that I have worried about, “Oh, no – I wasn’t talking to witnesses, I was talking to the general public.” Sorry, but that’s crap. Glad to see the courts looking at this and saying “Don’t even try to go there.”

  9. fatvegan000 says:

    I diligently read EW posts and all the comments, and even try to wade through the legal things referenced like the indictments. But I’m about as far from a lawyer as one gets, so my feelings might be wrong in terms of the law. However, I feel the need to say that this line from the opinion really bugs me:

    “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.”

    If everyone is (theoretically) equal under the law, what does it matter if one is a “former president and current candidate for the presidency?” Or is it just people who the public has an interest in what they say that are allowed special consideration? So if no one cares what one has to say, one can be gagged in a more strict way? This is what that statement implies to me – that in reality they really don’t think every citizen is equal.

    • Ebenezer Scrooge says:

      First Amendment law is contextual. Different categories of speech rate different levels of protection. Explicitly political speech receives the highest degree of protection. Commercial speech receives less protection. Some speech (e.g., obscenity) receives no protection at all.

      Since Trump is a serious candidate for president (ghaack!), his speech would be treated with the greatest solicitude.

      • bmaz says:

        1A law really is contextual. In addition to the the subject of this post, it is also important to the hysteria over the responses of the college deans to the table pounding ignorant demands of Elise Stefanik. They should be lauded for standing up to her.

        • Sohelpmedog says:

          But they didn’t really stand up to her and were full of apologies the next day. But in their defense, they are not First Amendment experts. It would have been nice to see some committee members who are more versed in 1A put their answers in context. Simply put, the college presidents were not supporting genocide. Stefan I’m is vomitstious and it’s unfortunate to see her get good press.

          • earlofhuntingdon says:

            One would imagine, though, that presidents of Ivy League universities would be exceptionally high-performing personalities and intellects. They have more than ample staff, at least one of whom would be a lawyer, who would know First Amendment law by heart. So, too, would one of their outside counsel.

            They were invited to a House committee hearing to be pilloried, not to debate fair limits to First Amendment speech. So they should have been prepared to respond to falsely-framed First Amendment questions from noxious Trumpists, such as Harvard alum, Elise Stefanik, whose objective was to score radical right talking points.

            They did not seem to be prepared. They danced around one obvious position, without stating it succinctly: Their universities exist, in part, to foster vigorous First Amendment debate among the finest, most ardent and diverse young minds in the country. That speech becomes impermissible principally when it leads directly to violent conduct. They could have drawn an obvious parallel with the sometimes obscene, but not immediately violent speech by House members themselves.

        • Purple Martin says:

          Agreed. As is often (but not always) the case, Ken White had one of the best takes on the table-pounding Stefanik in his Popehat Report substack Thursday (this one free, here’s its beginning):

          Stop Demanding Dumb Answers To Hard Questions
          Demanding Short, Dumb Answers About Hate Speech Makes You A Useful Idiot For Bigots.
          Ken White | Dec 7, 2023

          This post may be less solicitous of your feelings than you may hope.

          America faces many problems. The easy ones we solve or ignore. We struggle with the hard ones. Hard problems raise complex questions that lack glib, one-word answers. The stubborn thirst for simple answers to hard questions is bad for America. It’s anti-intellectual, pro-ignorance, pro-stupidity, pro-bigotry, pro-reactionary, pro-totalitarianism, pro-tyranny, pro-mob.

          The core Two-Minute Hate of this carnival was Rep. Elise Stefanik’s demand for yes-or-no answers to questions about whether policies at Harvard, Penn, and MIT would prohibit calling for the genocide of Jews. You might think Elise Stefanik is an unlikely standard-bearer for a crusade against antisemitism, given that she’s a repeat promoter of Great Replacement Theory, the antisemitic trope that Jews are bringing foreigners into America to undermine it. But if you bought Stefanik’s bullshit, you probably didn’t think that far.…

          White’s piece provides a blunt description of a broad range of stupidity, credulousness, disingenuousness, and cynically malicious intent (some on both sides, without engaging in both-siderism), plus some ways to address all that. Thoughtful and useful, well worth reading in full.

          • bmaz says:

            Yearggh! It will come as no surprise to regular readers here, I agree with Ken. This is a stupid and manufactured, for outrage, issue. Stupid things are what too often feed the national discourse these days.

            • earlofhuntingdon says:

              The GOP’s hate speech is more obnoxious than most of the content from elite college students Stefanik is hup about. Flip the target to any of the groups Republicans love to hate and see how long it takes Stefanik to haul three elite college presidents in to pillory them. She’s another fraud with a Harvard degree.

      • Spencer Dawkins says:

        I understand and agree, but if all Trump has to do is keep filing for political office every time he is defeated in an election, we won’t have many chances to treat him like anyone else.

        I remember that Trump filed as a 2020 election candidate on the afternoon of January 2017, after he was inaugurated early that day, and I suspect he didn’t do the same thing immediately after the 2021 inauguration was because he wanted to fundraise without being subject to reporting requirements. He’s not our parents’ political candidate.

        • Ginevra diBenci says:

          It seems like he didn’t file for the current campaign until mid-November 2022, the same day he had his announcement party at MAL.

          In some ways, that filing could be taken as an implied concession of the 2020 race–if he had really won it, as he keeps claiming, he would be ineligible to run for 2024.

          But I think you’re right. The main reason for stalling was fund-raising, although this campaign’s funds seem to have gone to legal fees too.

          • SteveBev says:

            There’s sworn evidence of it. The expert in Engoron’s court testified on Friday that part of his fees were paid by the Save America PAC. There’s plenty of of other evidence too.

            • Ginevra diBenci says:

              I thought I’d heard that. I wonder how many of his fans have figured out that by running for president in 2024, Trump is–definitionally–admitting he did not win in 2020?

              If all his loudmouth claims were actually true, he would be ineligible. For real. No need to argue about the 14th Amendment.

  10. pcpablo321 says:

    Question: If Donald appears to break the gag order in the courthouse hallway before he enters, and the judge orders him to spend the night in jail so he can contemplate his transgression, will Rusty immediately take him to lockup, or will an appeal be entered and he walks free?

    • Peterr says:

      He wouldn’t walk free unless either the judge or the appeals court issued a stay pending the appeals court hearing and ruling. Simply filing the appeal means nothing.

    • Attygmgm says:

      Pull the lens back just a bit and imagine Trump making an arguably over-the-line attack from afar. It would seem Judge Chutkan being fully within her authority to summon the parties, including the defendant, to appear in person at a hearing so as to explore his motive behind the attack. It could register no more than a piece of kelp stuck to the hull of a racing sailboat to imagine it slowing down Trump from repeated violations, but the sheer inconvenience of having to keep appearing at such hearings could serve as something of a logistical deterrent to keeping it up.

  11. e.a. foster says:

    “he is free to malign Jack Smith” but not others. That hardly seems fair. Given some of the things Trump has said over the years, what if he speaks in such a manner that it results in one of Trump’s supporters shooting Jack Smith or a member of his family.

    It is hard to say why Trump speaks as he does of others. Its rude, some of it appears to be less than truthful. Perhaps he has gotten away with it his whole life and is stuck in his teen years. Perhaps he does it to appear tough, but really it just makes him appear ignorant and a silly old man, who maybe loosing his marbles.

  12. Amicus12 says:

    Let’s hope this is the appellate panel that gets the immunity appeal.

    Off-topic but related and I’ll try to be concise. Trump has filed a second stay motion with the district court in which he argues the district court lacks jurisdiction – and thus implicitly jurisdiction to act on the stay request itself.

    DOJ’s response is due tomorrow. I assume they say it is an unsound motion for reconsideration and he should have filed in the Court of Appeals. But please, please say the substance of the immunity appeal is frivolous.

    • earlofhuntingdon says:

      Trump’s lawyers must not get out much. How many times a week do judges decide similar matters, such as whether they have personal or subject matter jurisdiction to try a party or a case?

  13. GrantS01 says:

    Regarding the “hecklers veto”.

    The MAGA herd stampedes when prompted. Trump is trying to claim he’s not responsible and is a victim of being called the lead bull.

    Can this arguement be shut down by showing MAGA only responds to Trump? I’m not aware of instances where MAGA responds in large numbers without Trump in these court cases.

      • GrantS01 says:

        Agreed. Yet Trump’s claim infers gag orders influence MAGA by denying his voice. And yet he also claims not to lead them.

        Thus the “heckler” becomes the leader.

    • Attygmgm says:

      The Court of Appeals panel dealt nicely with the “heckler’s veto” argument. First, by (twice!) quoting Trump himself acknowledging that his followers listen to him like nobody else’s. (He, of course, has to have superb followers). Second, by noting that the heckler’s veto concept applies to speech that is suppressed because it can or would enrage a crowd (the hecklers doing the vetoing), not to speech which is intended to and does incite and inflame a crowd.

      • earlofhuntingdon says:

        The heckler shouts down, suppresses, legitimate First Amendment Speech by others. Trump does that, too. But, here, he’s inflaming a crowd to incite their violence against his enemies. The latter is Fascism 101, and eminently suppressible speech.

  14. 2Cats2Furious says:

    For me, one of the more interesting aspects of this matter is how quickly the DC Court of Appeals issued its ruling on Trump’s appeal of Judge Chutkan’s limited gag order (LGO), and how that will potentially impact the timing as to Trump’s latest interlocutory appeal on the issues of “absolute Presidential immunity” (API) and double-jeopardy (DJ). Look at the timeline on the LGO:

    10/17 – Judge Chutkan enters LGO; Trump files Notice of Appeal (interlocutory)
    10/20 – Trump files Motion to Stay with trial court; Judge Chutkan orders briefing completed by 10/28
    10/29 – Chutkan denies Motion to Stay LGO
    11/3 – DC COA reinstates temporary stay of LGO; orders expedited briefing & hearing schedule
    11/20 – DC COA hears oral arguments
    12/8 – DC COA enters opinion and order modifying LGO

    That’s 52 days from issuance of LGO and Notice of Appeal; 40 days since trial court’s denial of stay; and 18 days from hearing until DC COA’s issuance of written order modifying LGO.

    Looking at the appeal of Judge Chutkan’s denial of Trump’s motions to dismiss based on API and DJ:

    12/1 – Judge Chutkan’s denial of MTDs
    12/7 – Trump files Notice of Appeal (interlocutory) and Motion to Stay before Chutkan, which he (falsely) claims is “automatic”
    12/10 -SCO’s response brief on Motion to Stay due by 5 PM
    12/12 – Trump’s reply brief due by 5 PM
    12/13 (probably) – Chutkan denies Motion to Stay (probably)
    ??? – DC COA orders briefing & hearing schedule; considers motion to stay pending appeal
    ??? – DC COA issues written opinion & order

    The main issue, of course, is whether Chutkan or the DC COA issues a stay of the underlying case, while the interlocutory appeal of the denial of the MTDs on grounds of API and DJ are pending. If so, even a delay of 30-60 days would have a major impact on the 3/4/2024 trial setting. There is certainly legal authority for staying underlying CIVIL proceedings based on an immunity claim (the DJ claim is just hot garbage). But Trump cites no authority for staying a CRIMINAL case based on an immunity claim.

      • 2Cats2Furious says:

        I don’t think Chutkan will issue a stay either, which is why is why I included that she’ll “probably” deny the Motion to Stay the day after Trump’s reply brief is due. Or possible the day of, since she required the reply to be filed by 5 PM, and I haven’t seen a specific time in her prior orders. She does NOT want to delay the 3/4 trial date.

        It will be more interesting to see what the DC COA does wrt a stay.

        My main point – that the DC COA can deal with this interlocutory appeal expeditiously – still stands. Frankly, I think denying Trump’s appeal of Chutkan’s order on the MTDs is an easier issue to decide than the LGO.

    • earlofhuntingdon says:

      Chutkan would never issue a stay in a criminal case, where the defense is playing these relentless shenanigans. The DC Circuit might, but I doubt it. I suspect the Supremes will be choosy about when to step into the morass of Trump’s trials.

      • 2Cats2Furious says:

        Again, I doubt that Chutkan will grant Trump’s Motion to Stay, but it won’t be because of this absolutely shitty (IMHO) response brief filed by the SCO.

        The SCO doesn’t even bother to distinguish the 2 primary cases cited by Trump in his MTS:
        1. Coinbase, which held that a CIVIL defendant was entitled to a stay of underlying trial proceedings pending resolution of its motion to dismiss in favor of arbitration.
        2. Blassingame, which involved a CIVIL complaint against Trump for his actions on J6, which concluded he was NOT entitled to absolute civil immunity for all acts taken while in office.

        Instead, the SCO basically states that it will continue to comply with court-ordered deadlines (even if Trump won’t), and that a stay of ALL underlying proceedings is inappropriate as it pertains to collateral issues.

        It’s an unbelievably weak filing that doesn’t do Judge Chutkan any favors.

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