Former President Donald J. Trump’s lawyers are asking the full federal appeals court in Washington on Monday to consider whether the gag order in his criminal case, where he is accused of plotting to overturn the 2020 election, should be narrowed or thrown out.
The request for a hearing in front of the full U.S. Court of Appeals for the District of Columbia Circuit is Mr. Trump’s latest attempt to challenge the order imposed on him in October by the trial judge handling the case in Federal District Court in Washington. Mr. Trump’s lawyers asked the full court to put the gag order on hold as it decided whether to hear his appeal.
Two weeks ago, a three-judge panel of the appeals court upheld the basic idea of restricting Mr. Trump’s public statements about the case but narrowed the terms of the order in a handful of important ways. As part of its revisions, the panel gave the former president wider latitude to make comments about potential witnesses in the proceeding and to attack Jack Smith, the special counsel overseeing the prosecution.
In its decision, the panel made an important finding: that Mr. Trump’s remarks did not have to present a “clear and present danger” to anyone involved in the case and the gag order could be used as a pre-emptive measure to prevent people from suffering harm.
Mr. Trump’s lawyers, in their request to the full court, took issue specifically with the panel’s ruling that the former president’s speech could be curtailed even if his words could not be linked to any immediate threat.
“This petition presents a question of exceptional importance,” the lawyers wrote. “Whether a district court may gag the core political speech of the leading candidate for president of the United States — disregarding the First Amendment rights of over 100 million American voters — based on speculation about undefined possible future harms.”
In the request, D. John Sauer, a lawyer handling appeals for Mr. Trump, argued that prosecutors had failed to present evidence that Mr. Trump’s public comments or social media posts had resulted in “any threats or harassment” or that anyone covered by the gag order had even “felt intimidated by President Trump’s speech.”
The revised order barred Mr. Trump from going after witnesses in the proceeding if his remarks pertained to their participation in the case. It prohibited him from attacking members of Mr. Smith’s staff or court employees involved in the matter. It also protected the relatives of prosecutors or court staff members.
If the full appeals court declines Mr. Trump’s request for a hearing or rejects his arguments after granting one, he could challenge the gag order in front of the Supreme Court, further entangling the justices in the election interference case.
