Former President Donald Trump’s legal team has challenged a gag order on his ability to publicly discuss key aspects of his ongoing election-related prosecution during his reelection campaign in an appeals court.
In a Wednesday filing in the U.S. Court of Appeals for the District of Columbia, lawyers for President Trump launched a scathing critique of what they term a “sweeping prior restraint” on his political speech at the height of his reelection campaign.
“No court has ever imposed a gag order on the political speech of a candidate for public office, let alone the leading candidate for president of the United States—until now,” wrote President Trump’s attorneys.
The former president has been muzzled at the height of his 2024 presidential campaign, his lawyers argued.
“President Trump’s message that the criminal cases against him are part of a politically motivated, unconstitutional campaign to silence him and derail his candidacy lies at the heart of his campaign—and the heart of the First Amendment,” they added.
On Oct. 17, District Court Judge Tanya Chutkan reinstated a gag order on President Trump, the leading 2024 GOP presidential candidate, at the request of special counsel Jack Smith, after she temporarily paused it.
An appeals court later suspended the order while it considers President Trump’s request to toss it.
President Trump’s attorneys argued that the district court’s gag order is trampling on his First Amendment rights and is based on speculative grounds. Their filing is the latest move in the legal battle in President Trump’s 2020 election interference case.
They contended that the Supreme Court declared in Republican Party of Minnesota v. White that the government should not prohibit candidates from communicating relevant information to voters during an election.
“The district court attempted to set metes and bounds for President Trump’s campaign speech by dictating that certain ‘general’ topics are permissible, while specific statements that ‘target’ certain people are unacceptable,” the lawyers wrote.
“At oral argument, the district court repeatedly questioned why it was ‘necessary’ to President Trump’s campaign to make public comments about specific individuals,” they continued. “The district court then tried to cordon off what it considered to be ‘necessary’ or appropriate campaign speech, authorizing President Trump to make ‘general’ statements, while forbidding him to make ‘public statements that target’ the Special Counsel, his prosecutors, and political rivals like Attorney General Barr and Vice President Pence.”
The lawyers assert that the order also deprives the American public of their right to “receive and listen” to President Trump’s speech, which they argue is crucial during a presidential campaign.
No Justification for Gag Order Exists: Trump’s Lawyers
The foundation upon which the gag order was imposed is at the crux of the dispute presented in the legal documents.
“Given its extraordinary nature, one would expect an extraordinary justification for the Gag Order. None exists,” the lawyers wrote.
The attorney argued that it rests solely on the district court’s speculation that President Trump’s speeches may incite “harassment” or “threats” to prosecutors, witnesses, or court staff.
They label this a “classic heckler’s veto” and insist that the First Amendment strictly forbids such restrictions on free speech.
President Trump’s lawyer further argued that the Department of Justice, which is prosecuting the case, submitted “no evidence” of threats or harassment. Instead, the prosecution, they wrote, admitted that “of course this prejudice is speculative.”
President Trump’s lawyers argued that a prior restraint cannot be based on speculation about how his audiences might react.
The attorneys charged that President Trump is being silenced at the height of his reelection campaign.
“The district court lacks the authority to muzzle the core political speech of the leading candidate for president at the height of his reelection campaign,” the lawyers wrote. “President Trump is entitled to proclaim, and the American public is entitled to hear, his core political messages. The Gag Order should be immediately reversed.”
On Oct. 16, Judge Chutkan said that President Trump’s legal team had failed to recognize the risks of his speech.
“Several times the court and the government pointed to evidence causally linking certain kinds of statements with those risks, and Defendant never disputed it,” Judge Chutkan said. “The evidence is in the record; Defendant simply fails to acknowledge it.”
In their September motion for the gag order, prosecutors claimed that threats against two Georgia election workers, who left their homes for safety, were linked to President Trump’s prior comments.
Oral arguments will be heard on Nov. 20.