A federal judge swiftly granted a request from former President Trump to pause her gag order limiting his speech in the election interference case while he appeals the decision.
“The Gag Order violates virtually every fundamental principle of our First Amendment jurisprudence. It imposes an overbroad, content-based prior restraint on the leading Presidential candidate’s core political speech,” Trump’s attorneys wrote in the filing.
A Monday decision from Judge Tanya Chutkan bars Trump speech that “targets” foreseeable witnesses in the case, lawyers on the case including prosecutors and court personnel.
It does not bar Trump from criticizing President Biden, campaign rival and former Vice President Mike Pence or the Justice Department and his prosecution in general.
Trump filed a notice of appeal with the D.C Circuit Court of Appeals earlier this week, though it has yet to make any legal arguments in that case.
The 33-page filing on Friday asks for Chutkan to address his request by Tuesday, noting any denial would result in him seeking an emergency stay from the appeals court.
Chutkan’s grant does not include any further legal discussion.
While Trump’s appeal of the gag order has yet to begin in earnest, Friday’s push for a stay offers a preview into how he plans to fight the limits on his speech.
“Given its extraordinary nature, one would expect an extraordinary and compelling justification for the Gag Order. But that is conspicuously absent. Instead, the Court generically states it must enter the Gag Order to prevent supposed ‘threats’ and ‘harassment,’” Trump’s team wrote.
Chutkan noted in her order that it was undisputed that Trump’s social media commentary and campaign rhetoric were leading to real threats for his targets, noting that he has even called for the death penalty against some expected witnesses in the case.
But she did not use the Justice Department’s suggestion that she limit speech that was derogatory or intimidating, settling with barring him from using speech to target certain individuals. It’s a more elastic phrase, one that could leave the door open for Trump criticism.
And Chutkan also did not bar Trump from attacking Washington, D.C. — something prosecutors worried could poison the jury pool.
In court, and again in Friday’s filing, Trump’s attorneys focused on his status as a president and how the order could impact his campaign.
“It prevents President Trump from discussing core political themes that are central to his campaign message and prevents him from criticizing speakers who are openly criticizing him in campaign events, media appearances, public statements, and even books,” they write.
“By restricting President Trump’s speech, the Gag Order eviscerates the rights of his audiences, including hundreds of millions of American citizens who the Court now forbids from listening to President Trump’s thoughts on important issues.”
Chutkan said earlier this week that Trump’s status as a candidate does not mean he has unfettered rights to speech.
“First amendment protections yield to the administration of justice and to the protection of witnesses,” Chutkan said at a Monday hearing to weight the matter.
—Updated at 6:44 p.m.