WASHINGTON — Former President Donald Trump’s attorneys filed a brief Wednesday asking the D.C. Circuit to overturn a lower judge’s partial gag order in his election fraud case.
In the 67-page filing, Trump attorneys John Lauro, Todd Blanche and D. John Sauer argue the order is unconstitutionally vague, overbroad and amounts to an “impermissible heckler’s veto” meant to silence Trump as he runs for a third time to be the Republican Party’s presidential nominee.
“The district court lacks the authority to muzzle the core political speech of the leading candidate for President at the height of his re-election campaign,” Trump’s attorneys wrote. “President Trump is entitled to proclaim, and the American public is entitled to hear, his core political message. The Gag Order should be immediately reversed.”
U.S. District Judge Tanya S. Chutkan imposed the partial gag order in October – saying she wouldn’t let Trump conduct a “pre-trial smear campaign” that could imperil his election fraud case. Trump was indicted in August on four felony counts alleging he conspired to defraud the United States in an effort to remain in power after the 2020 election. Chutkan’s order barred Trump from speaking publicly about potential witnesses to those efforts, including former Vice President Mike Pence and retired Chairman of the Joint Chiefs of Staff Gen. Mark Milley. The order also barred Trump from publicly attacking special counsel Jack Smith’s office or court employees.
In August, Trump wrote on his social media platform Truth Social that Milley, who is named as a witness in the indictment, had committed a “treasonous act” that was potentially punishable by death over reports about his phone calls with a Chinese general in the waning days of the Trump administration. Milley has defended the calls as being in line with his role as the nation’s highest-ranking military officer. Chutkan mentioned Trump’s comments about Milley specifically as part of her rationale for imposing the order.
"Why is it appropriate to write in all caps 'DEATH' about a potential witness in this case?" Chutkan asked Lauro during a hearing last month. "That's right up to 'won't someone rid me of this meddlesome priest.'"
In their request for the gag order, federal prosecutors said Trump is well aware that when he publicly attacks individuals he “inspires others to perpetrate threats and harassment against his targets.” During the January 6th Committee hearings, multiple witnesses, including former Arizona House Speaker Rusty Bowers, testified about the threats they received after declining to take part in Trump’s efforts to overturn the election.
Trump’s attorneys argued in their brief that several of the individuals Chutkan barred him from speaking about have made recent public statements criticizing him and attacking his fitness to hold the nation’s highest office. Lauro, Blanche and Sauer said Trump had fired back at his critics – including Pence, who, they noted, Trump has referred to as “delusional” and “Liddle’ Mike Pence” – without prosecutors claiming they received an uptick in threats.
“The prosecution did not present any evidence that any prosecutor, potential witness, or court staff had experienced any threats or harassment after any of President Trump’s public statements occurring since August 1, 2023; or any evidence that any such individuals had felt threatened or intimidated by such statements,” Trump’s attorneys wrote.
Trump’s appeal will be heard by a panel comprised of Judges Patricia A. Millett, Cornelia T.L. Pillard and Bradley Garcia. Millet and Pillard were nominated to the federal bench by President Barack Obama. Garcia, the first Latino to serve as a judge on the D.C. Circuit, was nominated to the bench by President Joe Biden last year.
Last week the panel granted a temporary administrative stay on Chutkan’s order while they consider Trump’s emergency motion for a more permanent stay during the appeal process. The panel was scheduled to hear arguments about his motion to reverse the stay on Nov. 20.
In their filing Wednesday, Trump’s attorneys said even if the Circuit ultimately upholds all or part of Chutkan’s gag order it should extend the stay for an additional week to allow them to make an emergency petition to the U.S. Supreme Court.