WASHINGTON — A federal appeals court will hear arguments Monday on whether a gag order against Donald Trump should be reinstated in the federal case accusing him of a plot to overturn the results of the 2020 presidential election.
Prosecutors with Special Counsel Jack Smith’s team will urge a three-judge panel of the Washington-based appeals court to reissue an order banning the former president from making inflammatory statements about lawyers in the case and potential to give evidence.
Prosecutors say these restrictions are necessary to prevent Trump from undermining confidence in the justice system and intimidating people who might be called to testify against him. Defense attorneys have called the silence order an unconstitutional restriction on Trump’s free speech and say prosecutors have presented no evidence to support the idea that his words caused harm or made anyone feel threatened.
The gag order is one of several controversial issues being discussed ahead of the historic March 2024 trial. Defense attorneys are also trying to get the case dismissed by arguing that Trump, as a former president, is immune from prosecution and by the First Amendment is protected from indictment. The outcome of Monday’s arguments will not affect those constitutional claims, but it will set parameters for what Trump as a criminal defendant and leading presidential candidate can and cannot say ahead of trial.
The order has been on a whirlwind path through the courts since U.
S. District Judge Tanya Chutkan imposed it last month in response to a request from prosecutors, who cited, among other things, Trump’s repeated disparagement of Smith as “insane.”
The judge lifted it just days after he entered it, giving Trump’s lawyers time to prove why his words should not be restricted. But after Trump took advantage of that pause by posting comments on social media that prosecutors said were intended to convince his former chief of staff not to give unfavorable testimony, Chutkan put them back in place.
The U.S. Court of Appeals for the District of Columbia Circuit later lifted it as it considered Trump’s appeal.
The judges hearing the case include Cornelia Pillard and Patricia Millett, both appointed by former President Barack Obama, and Brad Garcia, who joined the court earlier this year after being nominated by President Joe Biden.
The panel is not expected to rule immediately on Monday. If the judges rule against Trump, he has the option to ask the entire court to hear the case. His lawyers have also indicated they will ask the Supreme Court to get involved.
The four charges in Washington are among four criminal cases Trump faces in his bid to win back the White House in 2024.
He has been sued in Florida, also by Smith’s team, for illegally hoarding dozens of classified documents at his Mar-a-Lago estate. He has also been charged in state court in New York in connection with hush-money payments to a porn actress who alleged an extramarital affair with him, and in Georgia over schemes to undermine that state’s 2020 presidential election.