Librarian's Comment: Although nicely nested in clever conceits, Trump clearly calls for the assassination of Judge Chutkan. He does this by alluding to the Second Amendment right to bear arms when he says "WE ALL KNOW THAT WE HAVE MORE RIGHTS THAN JUST THE FIRST AMENDMENT" and then says we have to use that right "TO MAKE SURE THEY DON'T TAKE THEM FROM US!!" So that is why he "WILL NOT BE SILENCED", because his followers will kill the person who is endangering his liberty and freedom of speech. Just today, a woman approached him in the New York courthouse, a court employee under some kind of spell, who loudly addressed Trump, asking how she could help him, and later was arrested after she put up a fuss about being led out of the gallery. Somebody looking for instruction on who Trump would like to have killed doesn't have to look any further than his latest raving on Truth Social. So he's got a string of stochastic terrorists lined up, ready to take action, each one of them becoming a victim of his Svengali-like powers, and a weapon pointed at the conduct of our orderly society.
Donald J. Trump @realDonaldTrump DO YOU THINK I WILL BE GAGGED? YOUR FAVORITE PRESIDENT? HELL, NO I WILL NOT BE SILENCED. CORRUPT AND EVIL BIDEN JUDGE CHUTNEY HAS DARED TO PUT HERSELF ABOVE THE FIRST AMENDMENT! I THOUGH THIS WAS AMERICA BUT APPARENTLY D.C. IS NOTHING BUT A BANANNA REPUBLIC WHERE THE MONKEYS ARE RUNNING THE ASYLUM NOW, BUT FEAR NOT. THEY CANNOT SILENCE TRUMP! THEY WILL NOT SILENCE TRUMP, BECAUSE WE ALL KNOW THAT WE HAVE MORE RIGHTS THAN JUST THE FIRST AMENDMENT WE CAN USE TO MAKE SURE THEY DON'T TAKE THEM FROM US!! TRUMP 2024!!
Librarian's Comment: The media, commentators, attorneys, and even judges have been fooled by Trump's trumpeting that he will defend the insurrection and other criminal charges by arguing that he is the victim of a biased Department of Justice, i.e., the target of a selective prosecution. However, this defense is not going to be presented to the jury, because the judge will not allow jury instructions on a defense for which there is no evidence. It is also extremely difficult to get a selective prosecution jury instruction, because the legal obstacles are quite substantial. Prosecutorial discretion to charge whoever they want and to refrain from charging whoever they want, is a central pillar of our criminal justice system. Because it is lawful for a prosecutor to charge people in a manner that may in fact seem arbitrary to the public, for example by refusing to charge police officers who murder citizens with intentional murder crimes, instead always defaulting to some lesser manslaughter formulation, if they file charges at all. So selective prosecution is a really tough defense on which to get a jury instruction, and in Trump's case, there is not a scintilla of evidence to support a selective prosecution claim. Therefore, we could probably determine right now whether this is a legitimate defense. Since it is not a legitimate defense, it merely pollutes the mind of the jury pool for Trump to pound it into our heads day in day out that this is his defense. Jurors may very well walk into the jury room wondering why the court is not instructing on Trump's favorite defense. It could lead to jury nullification problems, with some juror feeling that Trump has been deprived of a legitimate defense that he has been talking about for 3 years by that time. Accordingly, in order to protect the jury pool from contamination by Trump's phoney selective prosecution defense, he should be gagged from spreading his selective prosecution defense through the media.
I don't think Mark Meadows would lie about the Rigged and Stollen 2020 Presidential Election merely for getting IMMUNITY against Prosecution (PERSECUTION!) by Deranged Prosecutor, Jack Smith. BUT, when you really think about it, after being hounded like a dog for three years, told you'll be going to jail for the rest of your life, your money and your family will be forever gone, and we're not at all interested in exposing those that did the RIGGING -- If you say BAD THINGS about that terrible "MONSTER," DONALD J. TRUMP, we won't put you in prison, you can keep your family and your wealth, and, prhaps, if you can make up some really horrible "STUFF" a out him, we may very well erect a statue of you in the middle of our decaying and now very violent Capital, Washington, D.C. Some people would make that deal, but they are weaklings and cowards, and so bad for the future our Failing Nation. I don't think that Mark Meadows is one of them, but who really knows? MAKE AMERICA GREAT AGAIN!!!
Government's Response in Opposition to Motion to Stay USA v. Donald Trump, Criminal No. 23-cr-257 (TSC) by DOJ Special Prosecutor Jack Smith October 26, 2023
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA v. DONALD J. TRUMP, Defendant.
CRIMINAL NO. 23-cr-257 (TSC)
GOVERNMENT’S RESPONSE IN OPPOSITION TO MOTION TO STAY
The Court has issued a narrow order (ECF No. 105, “Order”) under Local Criminal Rule 57.7(c) that strikes a careful balance between the First Amendment rights of the defendant and the need to safeguard the integrity of the proceedings, including by protecting certain trial participants from intimidation, harassment, and threats. These narrow restrictions were needed, the Court found (id. at 2), because the defendant has a demonstrated history of using inflammatory language to target certain individuals in a way that “pose[s] a significant and immediate risk that (1) witnesses will be intimidated or otherwise unduly influenced by the prospect of being themselves targeted for harassment or threats; and (2) attorneys, public servants, and other court staff will themselves become targets for threats and harassment.” The Order leaves the defendant entirely free (id. at 3) to assert his innocence, claim that his prosecution is politically motivated, criticize the platforms and policies of his political opponents, and level all manner of criticism at various institutions and individuals, including the incumbent president and the Department of Justice. But, like every other criminal defendant, what the defendant may not do is publicly target certain trial participants in order to “vilify and implicitly encourage violence against public servants” or to “launch a pretrial smear campaign against . . . foreseeable witnesses.” ECF No. 103 at 83-84. Because such targeted “statements pose sufficiently grave threats to the integrity of the proceedings that cannot be addressed by alternative means,” ECF No. 105 at 2-3, the Court found the Order both necessary to advance a compelling interest and narrowly tailored, ECF No. 103 at 82.
The defendant has moved to stay that Order pending appeal, insisting that he is entitled to target trial participants. ECF No. 110. But because he has failed to show either a substantial likelihood of success on the merits, or that the public interest weighs in favor of a stay, the defendant’s motion should be denied. Moreover, based on the defendant’s recent social media posts targeting a known witness in this case in an attempt to influence and intimidate him, the Court should lift the administrative stay and modify the defendant’s conditions of release to prevent such harmful and prejudicial conduct.
I. Background
Local Criminal Rule 57.7(c) authorizes each judge in this district to issue a “special order” in “a widely publicized or sensational criminal case” that “govern[s] such matters as extrajudicial statements by parties, witnesses and attorneys likely to interfere with the rights of the accused to a fair trial by an impartial jury.” LCrR 57.7(c). After indictment, the Government filed a motion (ECF No. 57) requesting such an order in light of the defendant’s repeated efforts to target witnesses and trial participants with disparaging and inflammatory personal attacks. The defendant opposed the Government’s motion. ECF No. 60.
At the hearing that followed, the Court reviewed numerous social media posts by the defendant, which fell “into roughly five categories”: (1) “statements about the District of Columbia and its jury pool”; (2) “statements about the Biden administration or the Justice Department”; (3) “statements about Special Prosecutor Smith and his staff”; (4) “statements about judges and their staff”; and (5) “statements about political witnesses.” ECF No. 103 at 27. In discussing these examples and other hypotheticals, the Court emphasized (id. at 37) that “speech critical of the exercise of the state’s power lies at the very center of the First Amendment,” and should therefore be given the widest possible berth. The Court noted (id. at 41), however, that “at some point a defendant’s targeted disparagement of government officials can go from permissible criticism of those officials to encouraging harm against them.” As the Court explained (id. at 41, 60), targeted disparagement of this sort can pose a real danger even when it does not explicitly call for harassment or violence, as repeated attacks on a perceived adversary are often understood as a signal to act against that person—much like King Henry II’s famous remark, in reference to Archbishop Thomas à Becket, “Will no one rid me of this meddlesome priest?” which resulted in Becket’s murder. See, e.g., United States v. Smallwood, 365 F. Supp. 2d 689, 696 n.14 (E.D. Va. 2005) (explaining the idiom). Such risks are far from speculative here, the Court found, given uncontradicted facts submitted by the Government showing that when the defendant “has singled out certain people in public statements in the past,” it has “led to them being threatened and harassed.” ECF No. 103 at 66-67.1
To that end, the Court asked defense counsel why, in advancing the claim that his “prosecution is politically motivated,” it was necessary for the defendant to use “derogatory labels” and “highly charged language” such as “thug” and “deranged,” that “frankly risk[] a real possibility of violence.” Id. at 41-42, 44-45. Likewise, the Court inquired why it was necessary for the defendant to advance his claim of judicial bias by attacking the Court as “a fraud dressed up as a judge” and “a radical Obama hack,” or to assert judicial bias in his ongoing civil trial in New York by posting to social media a photograph of a court staffer, accompanied by the false allegation that the staffer was Senator Schumer’s “girlfriend.” Id. at 50-51. The Court also asked why it would be acceptable for the defendant to say (hypothetically), in the course of criticizing his former Attorney General, that “Bill Barr should be executed for his many treasonous acts.” Id.
In response, defense counsel acknowledged that, if he were asked by his client, he would advise against actions like these, since targeted disparagement does not “necessarily need to be made in the context of a court proceeding,” id. at 70, and posting a court staffer’s photograph to social media is “not something that should be done in the course of a . . . court proceeding,” id. at 52.2 Counsel illustrated the point by noting that he had raised the issue of judicial bias “very professionally and very appropriately . . . and very respectfully” through the recusal motion, without any targeted disparagement, thereby “represent[ing] [the] client zealously” while also adhering to counsel’s duties as an officer of the court. Id. at 52-53. But counsel maintained that the Court could not constrain the defendant himself from saying these concededly unnecessary things. Instead, counsel proposed that the Court should merely ask defense counsel to “convey” to the defendant the Court’s “instructions and admonition[s]” about what the Court “find[s] acceptable,” with “the expectation” that the defendant would then choose to “abide by [the Court’s] instructions in that regard.” Id. at 53-54. Counsel maintained, however, that so long as the defendant’s comments could be characterized as addressing a topic of legitimate concern or public interest, the Court was powerless to place any limits whatsoever on the defendant’s extrajudicial speech, beyond what is already prohibited by the criminal law, even for the purpose of protecting trial participants or ensuring the fairness and integrity of the trial. See id. at 24-25 (counsel stating, “I can’t conceive of an order that would be lawful”).
In the defendant’s view, for example, because he is entitled to say that “this prosecution is politically motivated,” it must also be acceptable for him to refer to the prosecutors as “deranged” “thugs,” and to use his social media account to identify members of the prosecutor’s family. Id. at 45-48. Because the defendant is entitled to raise “the issue of potential judicial bias,” he must also be free to post a photograph of a court staffer and falsely allege that she is the “girlfriend” of a political adversary. Id. at 51-53. Because the defendant is entitled to say that “misconduct by a joint chief of staff is intolerable in a democratic society,” he must also be free to post on social media that “in times gone by” the appropriate “punishment” for the Chairman of the Joint Chiefs of Staff “would have been DEATH!” Id. at 56, 59-60. Because the defendant is entitled to “comment on Bill Barr’s activity as attorney general,” or discuss whether he “might have a position in a future administration,” he must also be free to call Barr “a slimy liar,” and to suggest that he, too, should be “executed.” Id. at 69-73. Defense counsel did not dispute that, when the defendant uses social media to target a perceived adversary in this manner, harassment, intimidation, and threats from third parties often follow. But he maintained (id. at 26, 60-61, 67-68) that, unless the defendant himself is delivering or inciting the threat, the Court was powerless to take prophylactic measures to prevent such harassment—and, in any event, some of the defendant’s targets were “tough-edged political people,” id. at 74, who would not be deterred from testifying despite such intimidation and threats.
After hearing from the parties, the Court orally granted the Government’s motion in part and denied it in part. Id. at 81-82.3 The Court explained that “[t]here is a compelling interest in the administration of justice and in protecting witnesses in this case, and it is possible to craft a narrowly tailored order to serve that interest.” Id. at 82.4 Based on the Court’s “review of past statements made by [the defendant] in particular, as well as the evidence that they have led to harassment and threats for the people he has targeted,” the Court found that, in the absence of an order, “there is a real risk that witnesses may be intimidated or unduly influenced and that other potential witnesses may be reluctant to come forward lest they be subjected to the same harassment and intimidation.” Id. at 84. The Court further explained that because these narrow restrictions on extrajudicial statements were aimed at “language that presents a danger to the administration of justice,” it would not impose any restrictions on two of the five categories of statements described above. Id. at 82-83. Specifically, the Court declined to impose any additional restrictions on “statements regarding the District of Columbia or its jury pool,” since “the voir dire process and cautionary jury instructions can filter out those statements’ influence on the jury.” Id. The Court likewise declined to impose any additional restrictions “on statements criticizing the government generally, including the Biden administration or the Justice Department, or statements communicating that [the defendant] believes this prosecution to be politically motivated.” Id. at 83. Thus, the defendant “can certainly claim he’s being unfairly prosecuted” and “may still vigorously seek public support as a presidential candidate, debate policies and people related to that candidacy, criticize the current administration, and assert his belief that this prosecution is politically motivated.” Id. at 83-84. But, like every other criminal defendant, he does not have “carte blanche to vilify and implicitly encourage violence against public servants” and he may not “launch a pretrial smear campaign against participating government staff, their families, and foreseeable witnesses.” Id. at 84-85. These narrow restrictions, the Court found, “are consistent with the rights secured by the First, Fifth, and Sixth Amendments, and . . . are both necessary and narrowly tailored to safeguard the integrity of these proceedings as well as to protect the safety of the people assisting with them.” Id. at 85.
The Court issued its written Order (ECF No. 105) the following day. In it, the Court acknowledged its duty to “‘take such steps by rule and regulation that will protect [its] processes from prejudicial outside interferences,’” explaining that, while “‘[f]reedom of discussion should be given the widest range compatible with the essential requirement of the fair and orderly administration of justice,’” it “‘must not be allowed to divert the trial from the very purpose of a court system to adjudicate controversies, both criminal and civil, in the calmness and solemnity of the courtroom according to legal procedures.’” Id. at 1 (quoting Sheppard v. Maxwell, 384 U.S. 333, 350-51, 363 (1966)). The Court then found that “[i]n order to safeguard the integrity of these proceedings, it is necessary to impose certain restrictions on public statements by interested parties.” Id. at 2. “Undisputed” evidence demonstrated that when the defendant “has publicly attacked individuals, including on matters related to this case, those individuals are consequently threatened and harassed,” with such targeted attacks on trial participants continuing post-indictment. Id. The defendant has made these targeted attacks, moreover, “to national audiences using language communicating not merely that he believes the process to be illegitimate, but also that particular individuals involved in it are liars, or ‘thugs,’ or deserve death.” Id. The Court therefore found “that such statements pose a significant and immediate risk that (1) witnesses will be intimidated or otherwise unduly influenced by the prospect of being themselves targeted for harassment or threats; and (2) attorneys, public servants, and other court staff will themselves become targets for threats and harassment.” Id. The Court further found there were no “alternative means” that could adequately address these “grave threats to the integrity of the proceedings.” Id. at 3. In particular, alternative means “such as careful voir dire, jury sequestration, and cautionary jury instructions” could “remedy only some of the potential prejudices.” Id. at 1-2. And “in the age of the Internet,” the risk to an individual is “largely irreversible” once he or she “is publicly targeted” on social media, even if the “offending statement” is later removed. Id.
The Court was cognizant (id. at 2-3) of the defendant’s status as a presidential candidate, and therefore found it appropriate to leave him room to criticize his prosecution as politically motivated and to attack institutions (such as the Department of Justice) as well individuals who are not trial participants (such as the incumbent president). The Court found, however, that, in keeping with basic principles of “equal justice under law,” his “candidacy cannot excuse statements that would otherwise intolerably jeopardize these proceedings.” Id. at 3.
The Court therefore ordered that:
All interested parties in this matter, including the parties and their counsel, are prohibited from making any public statements, or directing others to make any public statements, that target (1) the Special Counsel prosecuting this case or his staff; (2) defense counsel or their staff; (3) any of this court’s staff or other supporting personnel; or (4) any reasonably foreseeable witness or the substance of their testimony.
Id. The Court added, however, that “[t]his Order shall not be construed to prohibit Defendant from making statements criticizing the government generally, including the current administration or the Department of Justice; statements asserting that Defendant is innocent of the charges against him, or that his prosecution is politically motivated; or statements criticizing the campaign platforms or policies of Defendant’s current political rivals, such as former Vice President Pence.” Id.
On October 20, 2023, the defendant moved (ECF No. 110) to stay the Order, and the Court granted an administrative stay pending resolution of that motion (Minute Order). In the few days since the administrative stay has been in place, the defendant has returned to the very sort of targeting that the Order prohibits, including attempting to intimidate and influence foreseeable witnesses, and commenting on the substance of their testimony. For example, on October 24, 2023, the defendant took to social media to respond to a news report claiming that his former Chief of Staff, identified in the indictment, had testified in exchange for a grant of immunity:
Donald J. Trump @realDonaldTrump
I don't think Mark Meadows would lie about the Rigged and Stollen 2020 Presidential Election merely for getting IMMUNITY against Prosecution (PERSECUTION!) by Deranged Prosecutor, Jack Smith. BUT, when you really think about it, after being hounded like a dog for three years, told you'll be going to jail for the rest of your life, your money and your family will be forever gone, and we're not at all interested in exposing those that did the RIGGING -- If you say BAD THINGS about that terrible "MONSTER," DONALD J. TRUMP, we won't put you in prison, you can keep your family and your wealth, and, prhaps, if you can make up some really horrible "STUFF" a out him, we may very well erect a statue of you in the middle of our decaying and now very violent Capital, Washington, D.C. Some people would make that deal, but they are weaklings and cowards, and so bad for the future our Failing Nation. I don't think that Mark Meadows is one of them, but who really knows? MAKE AMERICA GREAT AGAIN!!!
Oct 24, 2023
Today, in a courthouse press conference in New York, the defendant again commented on the Chief of Staff’s credibility and anticipated testimony.5
II. Applicable Law
A stay pending appeal is “an intrusion into the ordinary processes of administration and judicial review and accordingly is not a matter of right.” Nken v. Holder, 556 U.S. 418, 427 (2009) (citation and quotation marks omitted). A stay pending appeal is “extraordinary relief.” Citizens for Responsibility & Ethics in Wash. v. Fed. Election Comm’n, 904 F.3d 1014, 1017 (D.C. Cir. 2018) (per curiam) (“CREW”). A movant seeking a stay pending appeal bears the burden of demonstrating that a stay would be appropriate. Nken, 556 U.S. at 433-34. A court considering whether to grant a stay pending appeal considers: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Id. at 434. The last two factors “merge when the Government is the opposing party.” Id. at 435.
The first factor—likelihood of success on the merits—is the “most important,” Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014), and will often be “determinative” in cases alleging a First Amendment violation, Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 897 F.3d 314, 334 (D.C. Cir. 2018). With respect to that paramount factor, “[i]t is not enough that the chance of success on the merits [is] better than negligible.” Nken, 556 U.S. at 434 (citation and quotation marks omitted). Rather, the likelihood of success on appeal must be “substantial.” Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977). The failure to make this requisite showing is “arguably [a] fatal flaw for a stay application.” CREW, 904 F.3d at 1019. Moreover, “even if irreparable injury might otherwise result to the appellant,” a stay “is not a matter of right” and remains an exceptional remedy. Nken, 556 U.S. at 427 (quotations omitted).
III. Argument
The defendant’s motion to stay the Court’s narrowly tailored order under Local Criminal Rule 57.7(c) should be denied. There has never been a criminal case in which a court has granted a defendant an unfettered right to try his case in the media, malign the presiding judge as a “fraud” and a “hack,” attack the prosecutor as “deranged” and a “thug,” and, after promising witnesses and others, “IF YOU GO AFTER ME, I’M COMING AFTER YOU,” target specific witnesses with attacks on their character and credibility, even suggesting that one witness’s actions warrant the “punishment” of “DEATH!” The defendant nevertheless claims that the First Amendment, combined with his status as a presidential candidate, grants him an unfettered right to do these things, and more. Indeed, he insists that the Court is powerless even to prevent him from posting photographs of court personnel, ECF No. 103 at 51-52, or publicly telling known witnesses that they should learn to keep their mouths shut, id. at 72. The most the Court can do, he maintains, is either wait for harassment or violence to occur and then take remedial steps (id. at 79)—such as ordering the removal of a particular post (id. at 52) or, better yet from the defendant’s perspective, delaying the trial date (id. at 20)—or ask defense counsel (id. at 54) to “convey” the Court’s “instructions and admonition[s]” to the defendant, with “the expectation” that the defendant will choose to “abide by [the Court’s] instructions in that regard.”
The First Amendment does not require such an ineffectual approach to protecting the integrity and fairness of the trial. To the contrary, the Court has both the authority and the duty to prevent trial participants, including the defendant, from engaging in extrajudicial speech that poses a substantial likelihood of material prejudice. The Court correctly entered such an order here.
The Order was based on appropriate factual findings grounded in the defendant’s long and well-documented history of using his public platform to target disparaging and inflammatory comments at perceived adversaries, regardless of whether they are military generals, judges, election workers, or court staffers. When the defendant does so, harassment, threats, and intimidation foreseeably and predictably follow. These actions, particularly when directed against witnesses and trial participants, pose a grave threat to the very notion of a fair trial based on the facts and the law. The Order is therefore aimed at serving the most compelling of governmental and societal interests.
The Court’s Order is also narrowly tailored. The Order placed no limitations whatsoever on the defendant’s ability to proclaim his innocence, to allege that the prosecution is politically motivated, to attack institutions like the Department of Justice and the government generally, to criticize individuals who are not participants in the case, including the incumbent president, and to criticize the platforms and policies of political rivals, even when they are expected to be witnesses at this trial. The Order is far narrower than the orders issued in similar cases, which often preclude any discussion of the case or any extrajudicial allegations of political motivation. It does not limit the defendant’s ability to present a full defense in court or hinder his ability to run for office. As the Court explained, the defendant’s status as a political candidate does not give him “carte blanche to vilify and implicitly encourage violence against public servants” or “launch a pretrial smear campaign against . . . foreseeable witnesses.” ECF No. 103 at 83-84. And, contrary to the defendant’s assertions, the Court considered alternative means but rejected them as unworkable, at least with respect to certain categories. Indeed, the Court rejected restrictions on some statements because it found that alternative means were sufficient to mitigate the resulting harms.
Finally, the Order is sufficiently clear and does not suffer from vagueness problems. The Order limits the defendant’s ability to “target” certain trial participants—that is, to single them out as “the object of general abuse, scorn, derision or the like.” Oxford English Dictionary 640 (target, n., sense 3.b); see id. at 642 (target, v., sense 2) (“To use (a person) as a target”). It does not limit the speech of non-parties, such as members of the public or the media. And, through discovery, the defendant has ample information about who the foreseeable witnesses are, which is presumably why he has not raised any vagueness objection to his conditions of release, even though those conditions likewise restrict his ability to speak to any individual known to be a witness.
Taken together, the Court’s Order was appropriate, and the defendant’s appeal is unlikely to succeed on the merits. And because the defendant cannot show that his constitutional rights have been violated, he cannot establish any of the other stay factors. The motion should be denied.
A. The Defendant Has Not Demonstrated a Substantial Likelihood of Success on the Merits.
1. The Court has the power to issue an order restricting extrajudicial speech of the defendant.
The “very purpose of a court system” is “to adjudicate controversies, both criminal and civil, in the calmness and solemnity of the courtroom according to legal procedures,” with the jury’s verdict “based on evidence received in open court, not from outside sources.” Sheppard v. Maxwell, 384 U.S. 333, 350-51 (1966) (quotations omitted). When a party threatens to flout this “undeviating rule” by trying to influence the case “through the use of the meeting-hall, the radio, and the newspaper,” id. (quotations omitted), rather than through evidence and legal argument, a court has the power to act. Indeed, courts have an affirmative duty to “take such steps by rule and regulation that will protect their processes from prejudicial outside interferences,” and “[n]either prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function.” Id. at 363.
A court’s power includes the ability to impose narrowly tailored restrictions on extrajudicial speech. Gentile v. State Bar of Nev., 501 U.S. 1030, 1075 (1991). In doing so, however, a court must strike a “constitutionally permissible balance” between the speaker’s First Amendment rights and the public’s “interest in fair trials.” Id. “Although litigants do not surrender their First Amendment rights at the courthouse door, those rights may be subordinated to other interests that arise in this setting,” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32 n.18 (1984), and “[f]ew, if any, interests under the Constitution are more fundamental than the right to a fair trial by impartial jurors,” Gentile, 501 U.S. at 1075 (quotations omitted).
The applicable standard for striking the constitutionally permissible balance depends on whether the speaker is a “participant[] in the litigation,” such as a defense attorney, or a “stranger[] to it,” such as a newspaper covering the case. Gentile, 501 U.S. at 1072-73. In cases involving a trial participant, a court must find that the extrajudicial speech poses a “substantial likelihood of material prejudice” to the trial. Id. at 1075. In cases involving restrictions on a third party, like the news media, a court must find that there is “a clear and present danger of some serious substantive evil which [the restrictions] are designed to avert.” Id. at 1069; see Neb. Press Ass’n v. Stuart, 427 U.S. 539 (1976).
The defendant asserts (ECF No. 110 at 2, 7) that the clear-and-present-danger test should apply here, relying on cases that preceded Gentile. But the Supreme Court’s decision in Gentile “foreclosed the applicability of [the clear-and-present-danger] test[] to the regulation of speech by trial participants.” United States v. Brown, 218 F.3d 415, 427 (5th Cir. 2000); see Gentile, 501 U.S. at 1072-73 (explaining that the “distinction between participants in the litigation and strangers to it is brought into sharp relief by” Seattle Times, which “unanimously held that a newspaper, which was itself a defendant in a libel action, could be restrained from publishing material about the plaintiffs and their supporters to which it had gained access through court-ordered discovery”); ECF No. 64 at 2-7 (collecting cases). Notably, the defendant never engages with the majority opinion in Gentile, citing the case only once (ECF No. 110 at 14); and even then, he cites a portion of the opinion, 501 U.S. at 1043, joined by only four justices, while failing to disclose that he is relying on a non-controlling section of the decision. See Gentile, 501 U.S. at 1032 (explaining that Part II of Justice Kennedy’s opinion is “an opinion” rather than “the opinion of the Court”).
The defendant’s attempt to equate his right to extrajudicial speech to that of the press also fails on its own terms. Criminal defendants, unlike the press, are subject to the jurisdiction and supervision of the court presiding over their case. They are routinely subject to reasonable restraints on their liberty—including the standard release condition, entered here without objection (ECF No. 13), barring them from communicating with witnesses about the case without attorneys present—that generally could not be permissibly imposed on the public or the media. See United States v. Salerno, 481 U.S. 739, 749 (1987) (“Even competent adults may face substantial liberty restrictions as a result of the operation of our criminal justice system.”). The contrary conclusion reached in the pre-Gentile case of United States v. Ford, rests on a single sentence stating, “We see no legitimate reasons for a lower threshold standard for individuals, including defendants, seeking to express themselves outside of court than for the press.” 830 F.2d 596, 598 (6th Cir. 1987). For that proposition, Ford cited Pell v. Procunier, 417 U.S. 817, 834-35 (1974), which explains that the First Amendment does not “impose[] upon government the affirmative duty to make available to journalists sources of information not available to members of the public generally.” Id. But the fact that the press and the public are treated equivalently for purposes of access to information does not suggest that a trial participant’s right to make extrajudicial statements is equivalent to the press and public’s right to comment on pending charges or a trial. To the contrary, a criminal defendant, like his attorney, is “privy to a wealth of information” provided in discovery that is unavailable to the general public or the media but particularly capable of jeopardizing a fair trial if disseminated. Brown, 218 F.3d at 428. And a criminal defendant has ample opportunity to comment on the trial through the judicial process itself—by filing motions, presenting evidence, making arguments—which is not afforded to the public or the media. Moreover, when the court’s animating concern is “protect[ing] [its] processes from prejudicial outside interferences,” Sheppard, 384 U.S. at 363, “there appears to be no reason, at least where lawyers and parties have each demonstrated a ‘substantial likelihood’ of making prejudicial comments outside the courtroom, to distinguish between the two groups for the purpose of evaluating a gag order directed at them both,” Brown, 218 F.3d at 428.
The defendant resists this conclusion by arguing (ECF No. 110 at 20-23) that the right to a fair trial belongs only to him, and so he should be free to try use external influences to distort the trial in his favor. That claim should be rejected. The defendant again relies (id. at 22) largely on Ford, 830 F.2d at 600, but that portion of the opinion was not embraced by the other two members of the panel. See Ford, 830 F.2d at 603 (Krupansky, J., concurring) (“[E]xisting legal precedent defines the Sixth Amendment right to a fair and impartial trial as a right that inures not only to the sole benefit of a defendant, but rather one that inures equally to the state as the representative of the people.”); id. at 606 (Nelson, J., concurring) (“The public’s interests do not extend to allowing the official to engage in tortious conduct toward his accusors, of course . . . .”). The Supreme Court’s decision in Gentile, which involved restrictions imposed on a defense attorney, forecloses such a narrow conception of the right to a fair trial. See Gentile, 501 U.S. at 1075 (emphasizing the need to strike “a constitutionally permissible balance between the First Amendment rights of attorneys in pending cases and the State’s interest in fair trials”). The defendant is therefore incorrect to suggest that he retains a constitutionally protected right to prejudice the trial in his favor. See United States v. Lindh, 198 F. Supp. 2d 739, 743 (E.D. Va. 2002) (“Defendant has no constitutional right to use the media to influence public opinion concerning his case so as to gain an advantage at trial. No such right inheres in either the Sixth Amendment right to a public trial, or the public’s First Amendment right to a free press.”); United States v. Tijerina, 412 F.2d 661, 667 (10th Cir. 1969) (“The public has an overriding interest that justice be done in a controversy between the government and individuals and has the right to demand and expect fair trials designed to end in just judgments. This objective may be thwarted unless an order against extrajudicial statements applies to all parties to a controversy. The concept of a fair trial applies both to the prosecution and the defense.”).
It is therefore clear that the Court had the authority to issue an order restricting the defendant’s extrajudicial speech. And while the Constitution requires only a finding of a substantial likelihood of material prejudice, the Court found that the Order satisfies even the defendant’s proffered standard (ECF No. 103 at 7-8), because it is narrowly tailored to advance a compelling interest (id. at 82-83).
2. The Order entered here was necessary and appropriate.
a. The Court correctly found that an order under Local Criminal Rule 57.7(c) was necessary to advance compelling interests.
The Court correctly found that an order under Local Criminal Rule 57.7(c) was necessary to advance the compelling interests of ensuring a fair trial free from outside influence and untainted by harassment, intimidation, and threats directed towards witnesses and other trial participants. The Court’s Order was premised on three well-supported factual findings.6 First, the defendant has a long history of using his social media account and public statements to target perceived adversaries by singling them out and using inflammatory and disparaging language that “vilif[ies] and implicitly encourage[s] violence against” them. ECF No. 103 at 84. Second, when the defendant does so, harassment, threats, and intimidation reliably follow. ECF No. 105 at 2. Third, such harassment, threats, and intimidation “pose a significant and immediate risk that (1) witnesses will be intimidated or otherwise unduly influenced by the prospect of being themselves targeted for harassment or threats; and (2) attorneys, public servants, and other court staff will themselves become targets for threats and harassment.” Id.
The defendant does not meaningfully dispute the accuracy of any of these findings. Instead, he first argues (ECF No. 110 at 8-10) that they lacked adequate evidentiary support. But the Government’s uncontradicted filings (ECF No. 57 at 2-13; ECF No. 64 at 9-12) documented a long history of targeted tweets as well as a litany of individuals who have described (sometimes in sworn testimony) the repeated and foreseeable effects of his targeting. E.g., ECF No. 57 at 3 (quoting congressional testimony stating, “After the President tweeted at me by name, calling me out the way he did, the threats became much more specific, much more graphic, and included not just me by name but included members of my family by name, their ages, our address, pictures of our home. Just every bit of detail you could imagine. That was what changed with that tweet.”); id. at 5 (quoting congressional testimony stating, “[W]hen someone as powerful as the President of the United States eggs on a mob, that mob will come.”).7 As the Court explained, these citations to public statements and testimony were “[ u]ndisputed,” ECF No. 105 at 2, and there was no need to submit the same material as part of an affidavit, ECF No. 103 at 57. Cf. United States v. Smith, 79 F.3d 1208, 1210 (D.C. Cir. 1996) (per curiam) (holding that the parties may proceed by proffer at a detention hearing). The factual findings here were adequately supported and readily distinguish this case from Ford. Cf. Ford, 830 F.2d at 597 (noting that the order was issued sua sponte); id. at 603 (Krupansky, J., concurring) (noting the absence of factual findings). And the defendant will not be able to demonstrate that they are clearly erroneous on appeal.
The defendant further maintains that, despite being a party to this case, his extrajudicial speech cannot be restricted unless the speech itself is independently criminal, either because it constitutes a direct threat or harassment, or because it incites criminal conduct by others. In his view, the likelihood that a “third party” might choose to engage in harassment, threats, or violence as a result of the defendant’s words can never authorize an order under Rule 57.7(c). See ECF No. 103 at 67 (dismissing these concerns as “totally irrelevant”). This argument is of a piece with the pattern that lies at the heart of the Court’s Order. As the Court explained (id. at 41, 60, 84), the defendant does not need to explicitly incite harassment or violence in his public statements, because he well knows that, by publicly targeting perceived adversaries with inflammatory language, he can maintain a plausible deniability while ensuring the desired results. The indictment notes, for example, that “[w]hen the Vice President refused to agree to the Defendant’s request that he obstruct the certification, the Defendant grew frustrated and told the Vice President that the Defendant would have to publicly criticize him,” which caused the Vice President’s Chief of Staff sufficient concern that he “alerted the head of the Vice President’s Secret Service detail.” ECF No. 1 at ¶ 97. The defendant knows the effect of his targeting and seeks to use it to his strategic advantage while simultaneously disclaiming any responsibility for the very acts he causes.8 And while the precise timing and manner of the resulting harassment, intimidation, or violence is, by the defendant’s own design, inherently “speculative” (ECF No. 103 at 62), what matters for present purposes is that everyone—the defendant, his “over 100 million followers” (ECF No. 110 at 4), and the people targeted—knows of the dynamic, which creates a “significant and immediate risk that (1) witnesses will be intimidated or otherwise unduly influenced by the prospect of being themselves targeted for harassment or threats; and (2) attorneys, public servants, and other court staff will themselves become targets for threats and harassment.” ECF No. 105 at 2. Contrary to the defendant’s suggestions (ECF No. 110 at 18-20), this dynamic is the opposite of a “heckler’s veto,” as the Court’s concern was not the violent disagreement of the audience, but rather the clear pattern of a portion of the audience agreeing with the defendant’s implicit wishes.
It is true, as the defendant insists, that some of the individuals he has targeted and plans to continue targeting are current or former high-ranking public officials who, after becoming the defendant’s targets, may be granted increased protection from the Marshals Service or the Secret Service, thereby mitigating the likelihood that any threats will be carried out. But the defendant’s threats have never been limited to such figures and have always included people like election workers and court personnel who have little ability to avail themselves of similar protections. There are numerous witnesses in this category, and without the Court’s Order there is an immediate risk that their testimony could be influenced or deterred by the defendant’s documented pattern of targeting. The Court was therefore correct to find that an order under Rule 57.7(c) was necessary.
The Court’s Order is also narrowly tailored. In most cases involving restrictions on extrajudicial speech, the order at issue has imposed a blanket prohibition on extrajudicial statements, subject only to narrow carve-outs. See Ford, 830 F.2d at 598 (citing “the broad ‘no discussion-of-the-case’ order”); id. at 605 (Nelson, J., concurring) (noting that the order “would prevent Mr. Ford from calling a press conference in Memphis and announcing, to take a purely hypothetical example, that he has decided to oppose any increase in the minimum wage because of the adverse effect such an increase would have on the employment opportunities of black teenagers in his district”); Brown, 218 F.3d at 418-19 (noting that “[t]he order provides that ‘[s]tatements or information intended to influence public opinion regarding the merits of this case are specifically designated as information which could prejudice a party’”); United States v. Manafort, 897 F.3d 340, 342 (D.C. Cir. 2018) (describing district court finding that the defendant had arguably violated the 57.7(c) order by contributing to an op-ed in a foreign newspaper discussing the facts of the case). In other cases, courts have expressly precluded defendants from making any extrajudicial statement “that imparts the message that Defendants have been subject to an improper, selective or vindictive prosecution,” since “the issue of selective prosecution is one of law not fact,” and such public statements risk biasing the jury pool. United States v. Fieger, No. 07-cr-20414, 2008 WL 659767, at *3, *6 (E.D. Mich. Mar. 11, 2008); see United States v. Scrushy, No. 03-cr-530, 2004 WL 848221, at *6 (N.D. Ala. Apr. 13, 2004) (directing trial participants to “remove from their existing webpages within seven days of this order extrajudicial comments, allegations of prosecutorial misconduct, and information concerning matters disclosed during the course of criminal discovery in this case”).
The Order here is far different and reflects the Court’s narrow tailoring. Rather than placing all discussion of the case presumptively off-limits, the Order prohibits only “public statements, that target (1) the Special Counsel prosecuting this case or his staff; (2) defense counsel or their staff; (3) any of this court’s staff or other supporting personnel; or (4) any reasonably foreseeable witness or the substance of their testimony.” ECF No. 105 at 3. By contrast, the Order explicitly does not prohibit the defendant “from making statements criticizing the government generally, including the current administration or the Department of Justice; statements asserting that Defendant is innocent of the charges against him, or that his prosecution is politically motivated; or statements criticizing the campaign platforms or policies of Defendant’s current political rivals, such as former Vice President Pence.” Id.
It is instructive to examine the scope of the Order in light of the things the defendant claims he needs to be able to say to defend himself and run for office. For example, on the day before the hearing, the defendant posted to social media that the government was seeking “to silence me, through the use of a powerful GAG ORDER, making it impossible for me to criticize those who are doing the silencing, namely Crooked Joe Biden, and his corrupt and weaponized DOJ & FBI.”9 The Order, however, leaves him entirely free to do those things. He can criticize the incumbent president and the Department of Justice. Indeed, he freely did so while the Order was in effect.10
During the hearing, defense counsel identified a number things that the defendant must be allowed to say, including that “this is a politically motivated prosecution” (ECF No. 103 at 18); that “he’s being treated unfairly” (id.); that “the Department of Justice is acting unlawfully” (id.); that “there are deep problems in this city that need to be addressed that haven’t been addressed by the Biden administration” (id. at 29-30); that “this is a politically biased prosecution by a politically biased prosecutor” (id. at 47); that there may be an “issue of potential judicial bias” (id. at 52-53); and that “misconduct by a joint chief of staff is intolerable in a democratic society” (id. at 59). He must also be allowed to “describe what he would like in an attorney general, and in particular compare how Attorney General Barr conducted himself with what kind of attorney general he would like” (id. at 64); and comment on “what a vice president should be, what an attorney general should be, what a secretary of state in a state should be and what a member of the joint chiefs of staff should be” (id. at 74-75). Again, the Order leaves him entirely free to say all of these things.
In his motion to stay, the defendant quotes (ECF No. 110 at 13) a lengthy passage from Ford emphasizing that the defendant must be entitled to “attack the alleged political motives of the . . . administration which he claims is persecuting him”; “fight the obvious damage to his political reputation in the press and in the court of public opinion”; and “inform his constituents of his point of view.” Ford, 830 F.2d at 600-01. The defendant can do all of these things and more. As such, the defendant has not remotely been “silenced.” Id. at 600.
The only thing he cannot do is target certain individuals connected to the case. And as defense counsel conceded (ECF No. 103 at 70) during the hearing, targeting of the sort prohibited by the Order does not “necessarily need to be made in the context of a court proceeding.” Indeed, the litigation of the recusal motion illustrates the point. The defendant was certainly entitled to move for the Court’s recusal and marshal any facts and law necessary to explain why he believed the Court could not give him a fair trial. Defense counsel did so, as he noted, “very professionally and very appropriately,” while also representing his client “zealously.” Id. at 52-53. The Government responded with its own facts and arguments, and the Court resolved the motion in a reasoned opinion, which the defendant may appeal after a final judgment, if warranted. In the meantime, the defendant himself is free to describe those proceedings to his followers. That is how the system is supposed to work, and how it has worked in the case of every other defendant, including those who are running for office.
What the defendant is fighting for here, however, is the right to go far beyond these sorts of measures so that he can continue using disparaging and inflammatory language that would never be put in a court filing, like “fraud,” “hack,” and “thug.” His failure to explain why such language is necessary only supports the inference that his objections to the Order do not stem from a legitimate concern with informing the public about his positions (which he is free to do), but rather with retaining his ability to target his perceived adversaries in a way that will foreseeably subject them to harassment, intimidation, and threat. The First Amendment—particularly when balanced against the bedrock values of a fair trial unaffected by external influence—does not grant him free rein to do so.
The defendant relatedly seeks (ECF No. 110 at 15-18) to invoke the rights of his followers to receive his message.11 But again, his followers can hear his views on a vast range of issues, including criticisms of this prosecution. As illustrated by the defendant’s social media posts in the days following the issuance of the Court’s Order, the defendant was in no way hampered from disseminating his views to his followers.12
The defendant also contends (ECF No 110 at 28-30) that the Order is not narrowly tailored because the Court purportedly failed to consider alternative measures. But the Court explained (ECF No. 105 at 2-3) that “alternative measures such as careful voir dire, jury sequestration, and cautionary jury instructions” could “remedy only some of the potential prejudices” that the Order was designed to avoid. Indeed, the Court declined to impose any restrictions on “statements regarding the District of Columbia or its jury pool” because it was “confident that the voir dire process and cautionary jury instructions can filter out those statements’ influence on the jury.” ECF No. 103 at 83. The Court likewise considered and rejected the possibility of using after-the-fact removal orders, explaining that, “in the age of the Internet[,] once an individual is publicly targeted, even revoking the offending statement may not abate the subsequent threats, harassment, or other intimidating effects.” ECF No. 105 at 2. Additional alternative measures, such as a continuance or change of venue, would be inadequate, and would only create a perverse incentive for the defendant to ramp up his targeting in order to gain the very relief that he otherwise requests.
c. The Order is not vague.
The Order also provides ample clarity to give the defendant “fair notice” and “sufficient warning” to “conduct [himself] so as to avoid that which is forbidden.” United States v. Bronstein, 849 F.3d 1101, 1104, 1106-07 (D.C. Cir. 2017) (quotations omitted) (rejecting vagueness challenge to a statute making it unlawful to “make a harangue or oration . . . in the Supreme Court Building or grounds”); see ACLU v. Wash. Metro. Area Transit Auth., 303 F. Supp. 3d 11, 27 (D.D.C. 2018) (“A speech regulation is unconstitutionally vague when it is not ‘clear enough to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.’” (quoting Bryant v. Gates, 532 F.3d 888, 893 (D.C. Cir. 2008)).
The vagueness doctrine is not offended by a term that “requires a person to conform his conduct to an imprecise but comprehensible normative standard, whose satisfaction may vary depending upon whom you ask.” Bronstein, 849 F.3d at 1107 (quotations omitted). Indeed, “the vagueness doctrine does not doubt the constitutionality of laws that call for the application of a qualitative standard to real-world conduct; the law is full of instances where a man’s fate depends on his estimating rightly some matter of degree.” Id. at 1108 (cleaned up); see Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989) (“[P]erfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.”). “Rather, a statute is unconstitutionally vague if, applying the rules for interpreting legal texts, its meaning specifies no standard of conduct at all.” Bronstein, 849 F.3d at 1107 (cleaned up). “Accordingly, when the vagueness doctrine assesses a legal term’s meaning to ordinary people, it is assessing meaning with the elementary rule of statutory interpretation: Words receive their plain, obvious and common sense meaning, unless context furnishes some ground to control, qualify, or enlarge it.” Id. at 1108 (quotations omitted). The operative terms in the Court’s Order easily satisfy that standard.
The defendant first challenges (ECF No. 110 at 25-26) the term “target,” cataloging various dictionary definitions of the term. “But we are interpreting [an Order], not restating a dictionary,” and “[o]ur search here is not for every facet of [the applicable terms], but their meaning within the [Order] at issue.” Bronstein, 849 F.3d at 1108. And in context, it is clear that the Order uses the word “target” to mean singling out a trial participant as “the object of general abuse, scorn, derision or the like.” Oxford English Dictionary at 640 (target, n., sense 3.b); see id. at 642 (target, v., sense 2) (“To use (a person) as a target”). As the Court’s discussion throughout the hearing and in the Order confirms, the prohibition on “targeting” is directed at attacking individuals with “language that presents a danger to the administration of justice.” ECF No. 103 at 82; see ECF No. 105 at 2 (“Defendant has made those statements to national audiences using language communicating not merely that he believes the process to be illegitimate, but also that particular individuals involved in it are liars, or ‘thugs,’ or deserve death.”). The defendant avers (ECF No. 110 at 27) that he needs to be able to lay out a “specific or detailed justification for” his claim that the prosecution is politically motivated, and that he needs to be able to discuss his political opponents’ “platforms or policies” to the extent that they are “deeply intertwined with their views on election integrity.” But the Court’s prohibition on targeting does not place any limits on offering specific and detailed justifications, discussing platforms or policies, or advancing any of the forms of rational argumentation that he claims it is necessary to make. To the contrary, it limits only the sort of fact-free, disparaging, inflammatory, ad hominem attacks that, as the defendant knows, tend to provoke harassment, threats, and intimidation from his followers. The mere fact that this standard may, in some circumstances, present close cases does not render the Order unconstitutionally vague. Bronstein, 849 F.3d at 1107-08; see United States v. Williams, 553 U.S. 285, 305-06 (2008) (rejecting as a “basic mistake” the belief that “the mere fact that close cases can be envisioned renders a statute vague,” since “[c]lose cases can be imagined under virtually any statute”).
The defendant next challenges (ECF No. 110 at 26) the phrase “all interested parties,” contending that it could encompass “the media covering [the case]” and “virtually every American voter.” No plausible interpretation encompasses this broad reading. An “interested party” is “anyone who both is directly interested in a lawsuit and has a right to control the proceedings, make a defense, or appeal from an adverse judgment.” Black’s Law Dictionary (party, sense 2; interested party). The Order thus restricts the defendant, his attorneys and their staff, and members of the Special Counsel’s Office.
The defendant further complains (ECF No. 110 at 26-27) that he cannot know who the “reasonably foreseeable” witnesses are, or what the “substance of their testimony” might be. But the defendant’s release conditions (ECF No. 13) likewise preclude him from communicating with witnesses about the facts of the case outside the presence of counsel, and he has not raised any vagueness objections to that condition. Rightly so, since the discovery includes a list of potential witnesses along with any testimony or statements they have given. A reasonable person in the defendant’s position has fair notice of who the foreseeable witnesses are and what the substance of their testimony will be.
* * *
In sum, the Court had an ample factual basis to issue the Order, and the Order is both narrowly tailored and sufficiently clear to provide the defendant with fair notice. He has therefore failed to show that his challenge to the Order is likely to succeed on the merits.
B. The Other Factors Weigh Against a Stay.
The other factors likewise counsel against a stay. See Archdiocese of Wash., 897 F.3d at 334 (considering remaining factors in tandem). While it is true that “the loss of constitutional freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,” the “deprivation of constitutional rights constitutes irreparable injury only to the extent such deprivation is shown to be likely.” Id. (quotations omitted). Where, as here “there is no showing of a likelihood of success on the merits,” there can be no showing of irreparable injury. Id. Likewise, “the strength of the [defendant’s] showing on public interest rises and falls with the strength of [his] showing on likelihood of success on the merits.” Id. at 335. Although “[t]he public interest favors the protection of constitutional rights,” the defendant “would need to show a likelihood of violation of [his] constitutional rights, and [he] has not done so.” Id.
The public interest also weighs against a stay for other reasons. As noted, “[f]ew, if any, interests under the Constitution are more fundamental than the right to a fair trial by impartial jurors, and an outcome affected by extrajudicial statements would violate that fundamental right.” Gentile, 501 U.S. at 1075. The very purpose of the Order is to safeguard that fundamental right, which not only protects the interests of the defendant but also the interests of the government and society in general. See id.; Tijerina, 412 F.2d at 667. In addition, the Court found that the Order was necessary to mitigate the “grave” and “largely irreversible” risk that the defendant’s acts of public targeting would result in intimidation, harassment, or threats towards members of the public. ECF No. 105 at 2-3. Staying the Order would allow those risks to continue unabated, contrary to the public interest.
C. The Court Should Immediately Lift the Administrative Stay and Modify the Defendant’s Conditions of Release.
The defendant’s continued targeting of witnesses and repeated violations of a similar order in New York during the brief interval while the Order has been administratively stayed, see supra at 9 (describing Oct. 20, 2023 post), not only illustrate the risks of suspending the Court’s appropriate order; they demonstrate why the Court should lift the administrative stay and modify the defendant’s conditions of release to protect witnesses from his attacks. Yesterday, within hours of a news report about the purported testimony in this case of the defendant’s former Chief of Staff, the defendant issued multiple prejudicial and threatening Truth Social posts to influence and intimidate the Chief of Staff and comment publicly on the subject of his testimony.13 The defendant’s targeting included insinuating that if the reporting were true, the Chief of Staff had lied and had been coerced, and the defendant sent a clear public message to the Chief of Staff, intended to intimidate him: “Some people would make that deal [to testify upon immunity], but they are weaklings and cowards, and so bad for the future [of] our Failing Nation. I don’t think that [Chief of Staff] is one of them, but who really knows?”14
Just as the defendants in Brown took advantage of that court’s suspension of its order prohibiting certain extrajudicial statements to publicly release evidence and prejudice the jury pool, see ECF No. 64 at 8, here the defendant has capitalized on the Court’s administrative stay to, among other prejudicial conduct, send an unmistakable and threatening message to a foreseeable witness in this case. Unless the Court lifts the administrative stay, the defendant will not stop his harmful and prejudicial attacks. In addition, to the extent that the defendant’s public message—directed to the Chief of Staff, with knowledge that it would reach him—is not already covered by his release conditions, it is an intentional end-run around them. See ECF No. 13 ¶ 7(t) (“The defendant shall not communicate about the facts of the case with any individual known to the defendant to be a witness, except through counsel or in the presence of counsel.”). Accordingly, the Court should modify the defendant’s conditions of release by making compliance with the Order a condition or by clarifying that the existing condition barring communication with witnesses about the facts of the case includes indirect messages to witnesses made publicly on social media or in speeches.15 See United States v. Stone, No. 1:19-cr-18, ECF No. 43 (D.D.C. Feb. 22, 2019) (incorporating compliance with 57.7(c) order as a condition of release). By doing so, the Court will have at its disposal the compliance measures available under 18 U.S.C. § 3148 in addition to those available as a contempt penalty for violating the Order. Otherwise, without the Court’s intervention, the defendant will continue to threaten the integrity of these proceedings and put trial participants at risk.
IV. Conclusion
The defendant’s motion to stay should be denied. The Court should also lift the administrative stay and modify the conditions of release.
Respectfully submitted,
JACK SMITH Special Counsel By: /s/Molly Gaston Molly Gaston Thomas P. Windom Senior Assistant Special Counsels 950 Pennsylvania Avenue NW Room B-206 Washington, D.C. 20530
_______________
Notes:
1 Shortly after being assigned to the case, the Court itself received a racist death threat explicitly tied to the Court’s role in presiding over the defendant’s case. See United States v. Shry, No. 4:23-cr-413, ECF No. 1 at 3 (Criminal Complaint) (S.D. Tex. Aug. 11, 2023) (caller stating, among other things, “‘If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly, b***h. . . . You will be targeted personally, publicly, your family, all of it.’”). This incident, like many of the others the Government cited, was widely publicized and surely well known to the defendant.
2 Defense counsel also assured the Court that the defendant’s post targeting the court staffer had been “dealt with” with by the court in New York. That assurance turned out to be mistaken. On October 20, 2023, the presiding judge in New York fined the defendant $5,000 for “blatant[ly] violat[ing]” the order in that case by leaving the photograph and false accusation on his campaign website. See Jonah Bromwich & Kate Christobek, Trump Ordered to Pay $10,000 in New Punishment for Breaking Gag Order, N.Y. Times (Oct. 25, 2023). Today, the defendant again violated the New York court’s order when he stated that the judge had “a person who’s very partisan alongside him, perhaps much more partisan than he is.” After the defendant claimed unconvincingly under oath that he had not been commenting on the court’s clerk, the judge found the defendant not to be credible and fined him $10,000. See New York Post, Trump fraud trial: Live updates from NYC courtroom, http://www.nypost.com/2023/10/24/news/t ... veupdates- from-nyc-courtroom/.
3 The Court also denied the Government’s separate request to impose “additional jury pool survey requirements.” ECF No. 103 at 82. That decision is not at issue in this motion to stay.
4 At the beginning of the hearing, the Court noted that the parties disputed the applicable legal standard, with the Government advocating for the substantial-likelihood-of-material-prejudice standard from Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), and the defendant advocating for a form of strict scrutiny that could only be satisfied by finding a clear and present danger to the administration of justice. ECF No. 103 at 6-7. The Court declined to resolve this dispute because it intended for any order “to satisfy either test.” Id. at 7-8.
6 Although the Court of Appeals will review the propriety and scope of the Order de novo, it will review questions of “historical fact” such as these for clear error. See Thompson v. Hebdon, 7 F.4th 811, 819 (9th Cir. 2021); Keister v. Bell, 879 F.3d 1282, 1287 (11th Cir. 2018); Green v. Haskell Cnty. Bd. of Comm’rs, 568 F.3d 784, 796 (10th Cir. 2009); Gustafson v. Jones, 290 F.3d 895, 906 (7th Cir. 2002).
7 The Government’s submissions, while extensive, did not purport to be a comprehensive account of every occasion when the defendant’s public targeting of perceived adversaries has resulted in threats, harassment, or intimidation. The public record is replete with other examples. See, e.g., United States v. Taranto, No. 1:23-cr-229, ECF No. 27 at 4-6 (D.D.C. Sep. 12, 2023) (affirming detention order for Taranto and explaining that, after “‘former President Trump posted what he claimed was the address of Former President Barack Obama’ on Truth Social,” Taranto— who had previously entered the Capitol on January 6, 2021—reposted the address, along with a separate post stating, “‘See you in hell, Podesta’s and Obama’s’” [sic], and then proceeded, heavily armed, to the area the defendant had identified as President Obama’s address, while livestreaming himself talking about “getting a ‘shot’ and an ‘angle,’” adding, “‘See, First Amendment, just say First Amendment, free speech’”) (quoting Taranto, ECF No. 20).
8 In a recently published recording, one of the defendant’s supporters described this well-known dynamic, stating, “‘Trump says, “Would you go and tell that guy over there to steal for me?” And so he can say, “I never told the guy to steal.” And things like that is how Trump gets away with it.’” See Ben Protess, et al., A President, a Billionaire and Questions About Access to National Security, N.Y. Times (Oct. 22, 2023); see also Donald Trump Spills Secrets, 60 Minutes Australia (playing audio recording in which the same supporter says that the defendant “knows exactly what to say and what not to say so that he avoids jail, but gets so close to it that it looks to everyone like he’s breaking the law. Like, he won’t go up to someone and say, ‘I want you to kill someone.’ He’ll say, he’ll send someone, to tell someone, to kill someone.”), available at https://www.youtube.com/watch?v=AVFT-2k8eWQ at 7:03.
10 See, e.g., https://truthsocial.com/@realDonaldTrum ... 3067355175 (Oct. 17, 2023) (“Crooked Joe Biden told the DOJ to Indict TRUMP hoping that it would help him in his campaign against me and the Republicans. In other words, he indicted his Political Opponent. They are now called the Biden Indictments, and nothing like this has ever happened in the USA before!”).
11 The defendant did not invoke these interests in his response to the Government’s motion for an order under Local Criminal Rule 57.7(c). And while the defendant claims to have invoked these interests at the hearing, only to have been unfairly interrupted by the Court (ECF No. 110 at 17), his citations mischaracterize the record. For example, he asserts (id.) that the Court interrupted him in response to his statement, “And what the government is proposing here is an order not just directed against President Trump but against the American electorate that wants to hear from President Trump under these circumstances.” The Court did not, in fact, interject in response to that point. See ECF No. 103 at 44. Rather, it was only several sentences later, after defense counsel returned to his oft-repeated talking point that “[t]his is the first time we’ve had a sitting administration prosecute a political opponent” that the Court responded, “I’m going to interrupt you. . . . You have said that. You have said it repeatedly. I have heard it.” Id. Likewise, the defendant asserts (ECF No. 110 at 17) that, when counsel said, “The American people are entitled to understand that and understand the consequences of that,” the Court simply responded, “No.” The Court did no such thing. After defense counsel’s comment, the Court asked why the defendant “is entitled to suggest that an appropriate punishment would be death.” ECF No. 103 at 59-60. When defense counsel invoked the First Amendment in response, the Court said, “No. As part of that. But again, the First Amendment protections must yield to the administration of justice and the protection of witnesses.” Id.
12 Between the time the Order was orally imposed and the time it was administratively stayed, the defendant posted roughly 182 times to Truth Social.
15 Section 3142 provides that the Court “may at any time amend the order to impose additional or different conditions of release,” id. § 3142(c)(3), and that release orders must “include a written statement that sets forth all the conditions to which the release is subject, in a manner sufficiently clear and specific to serve as a guide for the person’s conduct.” Id. § 3142(h)(1). Here, the Court has sufficient evidence before it to make a finding that the modified condition “is reasonably necessary to . . . assure the safety of any other person and the community,” id. § 3142(c)(1)(B)(xiv), and that the resulting “combination of conditions” is the “least restrictive” combination that “will reasonably assure . . . the safety of any other person and the community,” id. § 3142(c)(1)(B). See Manafort, 897 F.3d at 344-45; United States v. Pickel, 500 F. App’x 771, 772 (10th Cir. 2012).
Federal Judge ACTS URGENTLY on Trump THREATS, REIMPOSES ORDER by Michael Popok MeidasTouch Oct 29, 2023
Judge Chutkan has heard enough from Trump and just a day after Donald Trump filed his last brief, and without a hearing, she has reimposed her gag order on his using violent rhetoric to target in attack my name, participants in the criminal justice system against him. Michael Popok of Legal AF explains why this is a brilliant move by her. It makes it much harder for Trump to have the gag stayed by the DC court of appeals now that there is a full record and briefing at the trial court level, making it more likely that the appeals court will uphold Judge Chutkan’s gag order at the end.
Transcript
this is Michael popok legal AF Judge Chutkan has gagged Donald Trump once again you heard it again folks she ruled Judge Chutkan ruled just hours after Donald Trump completed the final brief in the case his reply brief which was filed uh on Saturday and by Sunday night without a hearing we have the order of Judge Chutkan has ruled that she is reimposing the original gag order that she placed on Donald Trump on the 17th of October and that she is uh therefore not going to continue the stay of the gag order which she had administratively imposed for a short period of time to let the parties be heard about whether the stay should stay in place and the gag lifted all the way through Donald Trump's appeal of the issue at the DC court of appeals but now having read the briefs and read Donald Trump's arguments the judge is like well we're going back to the the gag order now now let me remind everybody where we're at and then I'll give you as much information as we presently have about the New Order we know that it's in place and I'll try to give you my best guesstimate as to the The Contours of it 17th of October after full briefing and a two-hour Hearing in front of Judge Chutkan issued her opinion and Order which we refer to colloquially as the gag order and what she said was the following and then I'll talk about her why she uh stayed that order and why she is lifting the stay and reimposing the gag order now all on this hot TI just bear with me I assure you we will get through it in due course on the uh 17th of October the Judge Chutkan wrote as follows on page one under binding Supreme Court president this court must take such steps by rule and regulation that will protect its processes from prejudicial outside interference the First Amendment the court goes on does does not override that obligation freedom of discussion should not be given the widest range compatible with the essential requirement of the fair and orderly administration of justice but it must not be allowed to divert the trial from the very purpose of a court system to adjudicate controver controversies both criminal and civil in the calmness and solemnity of the courtroom according to legal procedures um for instance on several occasions this court has approved restriction on the communication of trial participants were necessary to ensure a fair trial for a criminal defendant the court went on to analyze US Supreme Court uh precedent and the alleged conduct of Donald Trump including his attacking individuals involved in the judicial process including in her words potential Witnesses prosecutors and Court staff and um his publicly targeting uh for harassment and other intimidating effects during the pre-trial and pre and trial stages of this particular case um and so the court entered the following as her gag order this is the actual part of the ruling that's the gag order it has ordered all interested parties in this matter both sides including the parties and their councel are prohibited from making any public statements or directing others to make any public statements that Target one the special counsel Prosecuting this case or his staff two defense coun or their staff three any of this Court's staff or other supporting Personnel or four any reason reasonably foreseeable witness or the substance of their testimony and then she clarified it with a um to to clarify if you will commentary about her own order she said this order shall not be construed to prohibit defendant Trump from making statements criticizing the government generally including the current administration of the Department of Justice statements as asserting the defendant is innocent of the charges against him or that his prosecution is politically motivated or statements criticizing the campaign platforms or policies of defendants current political Rivals so she gave a for avoidance of Doubt so that he understands and Donald Trump since the 17th of October has gone right along campaigning and attacking whoever he could that's not related to this order uh with his base that's obvious and so the briefing that went on happened because Donald Trump asked last week for the judge to do a temporary stay of her order and lift it so it wouldn't be binding on Trump during to allow Donald Trump to appeal it to the DC court of appeals which he'll do you have two places to get your stay if you want to get your gag order or your order lifted one you ask the trial judge to do it failing that you ask the the appellant court to do it and there'll be an an administrative judge of the appellant Court who will decide whether there should be a stay or not pending the full adjudication of the issue with the merits panel the three judge merits panel of the court so he went properly this time Trump to Judge Chutkan and said won't you please lift your lift your gag order for now while I um while I take the appeal and the judge because she's very sober and she's very reasonable she said I think this is an issue that needs full briefing so for now I am going to temporarily admin atively stay my order for this short amount of time like a week and a half and I want full briefing and I want the government the Department of Justice Jack Smith to file his brief uh this past Wednesday which he did and I want Trump to file his brief by uh Saturday night you know and he did late on Sat but but he got it in on Saturday night and we know how fast and the velocity at which Judge Chutkan makes her rulings she makes her rulings quickly um I even predicted on a on legal a F our podcast that she'd be ruling probably without a oral argument and so that was Saturday night full brief now it's fully brief federal judges generally make rulings without oral argument they don't need a hearing they already had a two two-hour hearing last time and nothing really changed except in the papers that were filed by the Department of Justice uh on Wednesday they were up to the minute they were they were outlining for the judge all the places where Donald Trump has continued to attack people violently since she lifted her gag order right including his attack on Mark Meadows who's now been identified as a key witness for Jack Smith and he he verly verly attacked Mark Meadows and then all the other people who are scared of Donald Trump and his Free Speech including the 60 Minutes Australia piece which we ran on the Meidastouch in legal AF networks here uh about Anthony Pratt the billionaire like Trump of a Australia who was secretly recorded and said Donald Trump operates like a mobster and so they were putting in real time things that had just happened that day like Donald Trump violating the gag order for the second time in New York in the hallway that Wednesday ended up in the in the department of Justice's papers that Wednesday when it was filed that's how up to the minute it was and then the the uh opposition or the reply paper that got filed by Donald Trump late last night which we have a copy of was really not a reply paper a reply paper is supposed to be what it sounds like you reply Point by point to the um arguments raised by the Department of Justice and you site to them on page blank of the of the motion or the order or whatever you're responding to and you and you refute them what you're not allowed to do is repeat regurgitate what you did in your opening brief which is exactly what Donald Trump did here's the argument Donald Trump told the judge as getting the last word in the motion in the motion practice he said everything I say right now because I am the leading candidate for the presidency his words not mine is core political campaign speech that cannot be restricted any way shape or form that's their argument the argument is because he is currently a candidate through a feat of alchemy it converts everything that comes out of his mouth into core protected First Amendment speech that knows no limits and Knows No Boundaries and can't be restrained even though there's this thing called the criminal justice system and the other branch of government laying right next to it he's saying you could never map a gag order onto me because I am the candidate this is what Donald Trump always believed when he when he decided to run for office that it would somehow put the kabash on all of these prosecutions against him and so but that's not the case law and the judge had already in her order uh had already cited case law that stood for the proposition that you have to there are two um rights under the Constitution that are in Conflict here and have to be reconciled First Amendment right of somebody in core political speech Yes but the Sixth Amendment right to have a fair and have a fair trial a fair and impartial trial and the administration of justice and not having that um that system overturned if you will or attacked or pressurized by the person who's on uh who's who's the defendant is important as well it's an important principle of our system of government and so there's plenty of cases that say that there is a a thresold across which you cannot cross if you if you are uh using your first amendment rights because it interferes with the fair adjudication or Fair administration of justice and that's what this judge chuin has said time and time again his first amendment rights running for office don't matter to me except to the up to the limits of what he's allowed to do without without interfering with the proper administration of justice which is my job she keeps reminding Donald Trump because he keeps forgetting and his lawyers that Donald Trump and his Liberty is at her discretion and it is in her hands that he is an indicted four-time felon in the federal court system in front of her and therefore he his freedom is being administered by the criminal justice system and so there are limits of what he can say outside the courtroom and it's clear as the papers for the government the Department of Justice laid out it hasn't inhibited him at all in his ability to campaign he wants to attack the Department of Justice great Joe Biden controlling the Department of Justice have had it judge judge chuin kind of generally without ver you know violent rhetoric against her or racial attacks maybe uh you know he can do all of that he can say he's innocent but he can't attack and Target Witnesses like Bill Barr will put up something here he's already in violation of the of the gag order as of the time that it hit the docket today um the judge just um just hit the docket again with this and we're waiting for the full order what we have for right now um what we have for right now that I can read to you is What's called the docket entry which alerts lawyers and people that follow things like this that there is an OP in an order coming but she wanted it clear that it was on the docketed it was docketed at 7:05 p.m. eastern time today on Sunday night it says opinion and order as to Donald J Trump denying defendants a motion to stay pending appeal and lifting the administrative stay imposed by the Court's October 20th 2023 minute order signed by judge Tanya s chuin we're still waiting to get our hands on the actual order to see what she's uh what she wrote because I'll be frank the docket the electronic docket crashed this order or other things like it broke the internet at least the court internet uh and we're not able to get our hands on it we will I promise you but I we already can pretty well guess 32 years of trial experience in courtrooms just like this one legal AF our leading podcast we do this all the time so we are not shocked by the result here we would have been shocked had judge chuin based on all of the briefing in front of of her this ridiculous argument that by Donald Trump that everything and anything he says is core political speech that can't be regulated in any way whatsoever I mean that's the same approach he took to the trying to overturn our election system and our electoral system he's trying to flip the apple cart on our court system and our judicial system and that he's not allowed to do the other thing they argue is they had argued is that the gag order which I read to you is very very simple in PL English and easy to understand was actually incomprehensible and over Broad and vague they couldn't figure out what it meant they they said they don't they don't know what some of these words mean judge uh some of the words were like uh we don't know what rhetoric is and we don't know what violent is and we don't know what um Target means I mean it was really silly and I think the judge was waiting to say all right maybe they'll they'll grow a brain between their first filing and their they get the last word here on the Trump side nope they didn't it's the exact same regurgitation of what they wrote the first time around and so she is now confident that there is a full record that can go now up to appeal to her bosses at the DC court of appeals she's she's appealed but she's frequently upheld she's a well-respected trial judge probably will be on the DC court of appeals one day especially if Biden has his way could be on the US Supreme Court one day she's that well respected and so she's said she's basically said to Donald Trump Trump how about it you got a full briefing now you got my you got my order two orders you got three briefs full record take that up to the appell at court so they now you know this is very key rather than it being um completely uh supon meaning at the appell court level they're making their own decision based on you know some record in front of them and some briefing schedule they now have a set of briefs in front of them and they have to use what's called an abuse of discretion standard which is to the judge's Advantage here because it is very hard to overturn things that are an abusive discretion and even though the other side will argue for a heightened standard to evaluate her order I don't think there's any other way to read this based on now the full record is that the uh appellant court is going to have to decide whether there was an abuse of discretion which is a very low threshold in other words judges are given tremendous amount of discretion at the trial court level to make decisions and to overturn that you have to show what's called an abuse of their discretion which is very difficult for Donald Trump to make out so this again is another way that chuin um cornered Donald Trump made him brief the issue here in the trial court level and then he can't start all over again with new briefing or new issues it's now going to be them evaluating the stay and whether the stay should be lifted or not another brilliant uh position by judge chuin and then of course the Department of Justice worked right with it we'll get the actual order I expect the internet will log back on later tonight or early tomorrow we're looking for it we're refreshing all the time trying to get our hands on it but the docket entry told us everything we need to know Donald Trump has lost um he's lost his bid to have his gag order um lifted he's already in violation of his gag order having gone after for instance Bill Barr he's gonna have to sit down with his uh lawyers and understand as of um you know 7:00 tonight what he can and can't do because if he violates it again and and Crosses that line that Line in the Sand this judge is going to bring him in for a contempt hearing uh and require that he be there and be under oath and then she's going to go from there it may start at a fine but this will very rapidly go to jail time now John Loro the lawyer for Donald Trump has let it be known that he doesn't think that the judge will ever really impose the gag order on Donald Trump and nor will she put him in jail I got news for John Loro I don't know what game you think you're playing with a federal judge but I would not play that game this is even judge engoron in a civil context in New York is progressively moving you towards potentially finding you in contempt and perhaps putting him in jail uh and then it'll have to go up on an appell process I would not play with a federal judge not one who's now reimposed the gag order after listening to the full briefing who has the support and often is affirmed by the her bosses at the court of appeals I would not play with that um at all but we'll see what John Loro and Donald Trump do they like to test the limits of things uh well oh I got impeached but will I get convicted oh I I let an Insurrection but will I be you know banned from a ballot on a certain State I mean he's constantly pushing and testing and probing to find the limits of what the system will allow him to do will continue to report on Gag orders and their violation and what happens to those gag orders right here on the M touch Network on this YouTube channel you knew that you know where to find us I do it I do a a hot take like this some days it seems like every hour I'm doing a hot take at least once a day I do a hot take at the intersection of law politics and Justice and then we kind of pull it all together and curate a podcast which is the leading podcast of its type only on the midest touch Network exclusive ly they are called Legal AF it is what you think and it's every Wednesday and Saturday on 8:00 P.M eastern time and then on audio platforms wherever you find them um and then if you like this kind of um content give me a thumbs up leave me a note sometimes I respond to it if I see something very interesting and then you can follow me on all things social media at Ms poopak until my next hot take until my next legal AF this is Michael popac reporting
Page 1 of 9 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Criminal Action No. 23-257 (TSC) UNITED STATES OF AMERICA, v. DONALD J. TRUMP, Defendant. OPINION AND ORDER On September 15, 2023, the government filed a Motion to Ensure that Extrajudicial Statements Do Not Prejudice These Proceedings. ECF No. 57. Following a motion hearing on October 16, 2023, see Tr. of Mot. Hr’g, ECF No. 103 (“Hr’g Tr.”), the court prohibited the parties and counsel in this matter from making certain public statements, Opinion and Order, ECF No. 105 (“Order”). Defendant has appealed that Order, see ECF No. 106, and now moves for the court to stay the Order during the pendency of that appeal, ECF No. 110 (“Motion to Stay”). The court entered a temporary administrative stay of its Order while the parties briefed the Motion, see October 20, 2023 Minute Order, but will now DENY Defendant’s Motion and lift the stay.1 I. DISCUSSION Four factors guide the decision whether to stay an order pending appeal: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; 1 The government also asks the court to incorporate the Order into Defendant’s conditions of release. Resp. in Opp’n to Mot. to Stay, ECF No. 120, at 30–32. The court hereby DENIES that request without prejudice. Even assuming that request is procedurally proper, the court concludes that granting it is not necessary to effectively enforce the Order at this time. Case 1:23-cr-00257-TSC Document 124 Filed 10/29/23 Page 1 of 9 Page 2 of 9 (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Nken v. Holder, 556 U.S. 418, 426 (2009) (citation omitted). The third and fourth factors “merge when the Government is the opposing party.” Id. at 435. Here, all the factors weigh against granting a stay. A. Likelihood of success on the merits Defendant has not made a strong showing that he is likely to succeed on the merits. As the court has explained, the First Amendment rights of participants in criminal proceedings must yield, when necessary, to the orderly administration of justice—a principle reflected in Supreme Court precedent, the Federal Rules of Criminal Procedure, and the Local Criminal Rules. Order at 1–3; see, e.g., Hr’g Tr. at 6–8, 16–18, 31, 34, 60, 64, 82–85. And contrary to Defendant’s argument, the right to a fair trial is not his alone, but belongs also to the government and the public. See, e.g., Gentile v. State Bar of Nevada, 501 U.S. 1030, 1075 (1991) (emphasizing “the State’s interest in fair trials”); United States v. Tijerina, 412 F.2d 661, 667 (10th Cir. 1969) (“The public has an overriding interest that justice be done in a controversy between the government and individuals and has the right to demand and expect ‘fair trials designed to end in just judgments.’ This objective may be thwarted unless an order against extrajudicial statements applies to all parties to a controversy. The concept of a fair trial applies both to the prosecution and the defense.” (internal citations omitted)). Defendant’s repeated appeals to broad First Amendment values therefore ignore that the court—pursuant to its obligation to protect the integrity of these proceedings—recognized those values but, in balancing them against the Case 1:23-cr-00257-TSC Document 124 Filed 10/29/23 Page 2 of 9 Page 3 of 9 potential prejudice resulting from certain kinds of statements, found them outweighed. See Motion to Stay at 2–3, 10–24.2 Defendant’s other claims also disregard the record. To begin, he asserts that the court “cite[d] no evidence supporting its findings of risks of harassment and witness intimidation, and the prosecution provided none.” Id. at 8. But several times the court and the government pointed to evidence causally linking certain kinds of statements with those risks, and Defendant never disputed it. See Hr’g Tr. at 67 (The Court: “[W]hen Mr. Trump has singled out certain people in public statements in the past, hasn’t that led to them being threatened and harassed, as demonstrated in the statements attached by the government?” Mr. Lauro: “Your Honor, that’s totally irrelevant.” The Court: “And the government’s motion cites several of them who averred in the kinds of statements that you’ve asked for under oath that threats and harassment toward them had increased significantly as a result of Mr. Trump’s statements about them.”); Order at 2 (“Undisputed testimony cited by the government demonstrates that when Defendant has publicly attacked individuals, including on matters related to this case, those individuals are consequently threatened and harassed. See ECF No. 57 at 3–5.”); see also ECF No. 60 (failing to dispute or even discuss the testimonies cited by the government). The evidence is in the record; Defendant simply fails to acknowledge it. 2 Defendant’s Motion argues that his speech restrictions are inconsistent with the “right of listeners to receive President Trump’s message.” Motion to Stay at 15. Defendant did not squarely raise that argument in his opposition brief to the government’s original motion; the closest he came to identifying any authority for it was an unrelated “see also” citation to United States v. Ford, 830 F.2d 596, 598 (6th Cir. 1987), a case that he now quotes to support his right-of-listeners argument. Compare ECF No. 60 at 5, with Motion to Stay at 16. But the court expressly addressed and distinguished that case. Order at 2–3. In any event, the argument does not alter the fundamental principle that First Amendment rights, whether those of the speaker or the listener, may be curtailed to preclude statements that pose sufficiently grave threats to the integrity of judicial proceedings. Case 1:23-cr-00257-TSC Document 124 Filed 10/29/23 Page 3 of 9 Page 4 of 9 Likewise, Defendant claims that the court “g[ave] no meaningful consideration to alternative, less restrictive measures, including a narrower order.” Motion to Stay at 28. Again, the record flatly contradicts that claim. During the motion hearing, the court questioned whether Defendant’s existing speech restrictions, such as his conditions of release, would adequately prevent the potential dangers to these proceedings. Hr’g Tr. at 10–11, 34–35, 70. The court also considered whether alternative measures could prevent those harms—and in fact concluded that they could—with respect to certain kinds of statements, such as those disparaging the District of Columbia. Id. at 28, 35–36. Accordingly, the court denied the government’s motion in those respects. Id. at 82–83; Order at 1. But the court explained that alternative measures would not sufficiently mitigate the risks flowing from other kinds of statements, such as those targeting reasonably foreseeable witnesses. See Order at 1–2 (“Here, alternative measures such as careful voir dire, jury sequestration, and cautionary jury instructions are sufficient to remedy only some of the potential prejudices that the government’s motion seeks to address.”); id. at 2 (noting that the risks created by certain statements would be irreversible); id. at 2–3 (“[T]his court has found that even amidst his political campaign, Defendant’s statements pose sufficiently grave threats to the integrity of these proceedings that cannot be addressed by alternative means, and it has tailored its order to meet the force of those threats.”). The court thus tailored its Order to prohibit statements only where less restrictive measures would be inadequate. Defendant’s final claim is that the Order is unconstitutionally vague for various reasons, none of which withstand scrutiny. First, Defendant quotes Merriam-Webster Online’s definition of “interested” to conclude that the term “interested parties” includes could include “everyone ‘affected’ by or ‘involved’ in the case.” Motion to Stay at 26. But “interested party” is a well-established legal term of art meaning “anyone who both is directly interested in a lawsuit and has Case 1:23-cr-00257-TSC Document 124 Filed 10/29/23 Page 4 of 9 Page 5 of 9 a right to control the proceedings, make a defense, or appeal from an adverse judgment.” Interested Party, Black’s Law Dictionary (11th ed. 2019) (referencing Party (2), Black’s Law Dictionary (11th ed. 2019)). The Order confirmed that scope, defining the term as “including the parties and their counsel.” Order at 3; see also Hr’g Tr. at 83–84 (stating that the written order would apply to the parties and their counsel). There is no meaningful basis to interpret “interested parties” as covering anyone else. Second, Defendant focuses on the prohibition of “targeting” certain individuals, again quoting various dictionary definitions to assert that targeting could include not only identifying those individuals, but also attacking them, subjecting them to ridicule or criticism, or otherwise attempting to affect them. Motion to Stay at 25. But “restating a dictionary” to “search . . . for every facet” of relevant terms is not a proper vagueness inquiry. United States v. Bronstein, 849 F.3d 1101, 1108 (D.C. Cir. 2017). “Rather, a statute is unconstitutionally vague if, applying the rules for interpreting legal texts, its meaning ‘specifie[s]’ ‘no standard of conduct . . . at all.’” Id. at 1107 (quoting Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971)). And a cardinal rule of interpretation is that context matters; “a word is known by the company it keeps.” Id. at 1108 (quoting Jarecki v. G. D. Searle & Co., 367 U.S. 303, 307 (1961)). The motion hearing and corresponding Order provide substantial context for and examples of the kinds of “targeting” statements that could result in “significant and immediate risk[s]” to “the integrity of these proceedings.” Order at 2. Indeed, the court identified that, depending on their context, statements matching each of the definitions Defendant proffers for the term “target” could pose such risks. See, e.g., Hr’g Tr. at 50–54 (risks associated with publicly identifying court staff); id. at 41–43 (risks associated with attacking prosecutors); id. at 59–60 (risks associated with criticizing potential witnesses); id. at 13–14 (risks associated with Case 1:23-cr-00257-TSC Document 124 Filed 10/29/23 Page 5 of 9 Page 6 of 9 attempting to affect potential witnesses’ testimony, even using praise rather than criticism). Defense counsel also repeatedly relied on context to distinguish permissible from impermissible statements. See, e.g., id. at 72 (The court: “Next hypothetical. ‘Bill Barr is a smart guy, but he better learn to keep his mouth shut.’ Permissible? Or an attempt to obstruct justice or intimidate a witness?” Mr. Lauro: “[It] depends on the context . . . . [I]f it happened the day before Bill Barr testified at trial, that might be [impermissible].”); id. at 71 (similar). A “term is not rendered unconstitutionally vague because it ‘do[es] not mean the same thing to all people, all the time, everywhere.’” Bronstein, 849 F.3d at 1107 (quoting Roth v. United States, 354 U.S. 476, 491 (1957)). The court’s Order and the motion hearing’s record sufficiently clarify the meaning of “targeting” to provide fair notice of the kinds of statements—understood in context—that it prohibits. Two of Defendant’s social media posts since the Order’s entry illustrate the comprehensible difference between the statements it permits and those it proscribes. First, on October 20, 2023—after the Order was entered, but before it was administratively stayed—Defendant stated: Does anyone notice that the Election Rigging Biden Administration never goes after the Riggers, but only after those that want to catch and expose the Rigging dogs. Massive information and 100% evidence will be made available during the Corrupt Trials started by our Political Opponent. We will never let 2020 happen again. Look at the result, OUR COUNTRY IS BEING DESTROYED. MAGA!!!3 This statement asserts that Defendant is innocent, that his prosecution is politically motivated, and that the Biden administration is corrupt. It does not violate the Order’s prohibition of “targeting” certain individuals; in fact, the Order expressly permits such assertions. Order at 3. 3 https://truthsocial.com/@realDonaldTrum ... 0982205234. Case 1:23-cr-00257-TSC Document 124 Filed 10/29/23 Page 6 of 9 Page 7 of 9 By contrast, on October 24, 2023—after the Order was administratively stayed—Defendant stated: I don’t think Mark Meadows would lie about the Rigged and Stollen 2020 Presidential Election merely for getting IMMUNITY against Prosecution (PERSECUTION!) by Deranged Prosecutor, Jack Smith. BUT, when you really think about it, after being hounded like a dog for three years, told you’ll be going to jail for the rest of your life, your money and your family will be forever gone, and we’re not at all interested in exposing those that did the RIGGING — If you say BAD THINGS about that terrible “MONSTER,” DONALD J. TRUMP, we won’t put you in prison, you can keep your family and your wealth, and, perhaps, if you can make up some really horrible “STUFF” a out him, we may very well erect a statue of you in the middle of our decaying and now very violent Capital, Washington, D.C. Some people would make that deal, but they are weaklings and cowards, and so bad for the future our Failing Nation. I don’t think that Mark Meadows is one of them, but who really knows? MAKE AMERICA GREAT AGAIN!!!4 This statement would almost certainly violate the Order under any reasonable definition of “targeting.”5 Indeed, Defendant appears to concede as much, Reply in Support of Motion to Stay, ECF No. 123, at 10 n.3 (“If the Gag order had been in effect, President Trump would have been unable to [make the statement].”)—and for good reason. The statement singles out a foreseeable witness for purposes of characterizing his potentially unfavorable testimony as a “lie” “mad[e] up” to secure immunity, and it attacks him as a “weakling[] and coward[]” if he provides that unfavorable testimony—an attack that could readily be interpreted as an attempt to influence or prevent the witness’s participation in this case. The plain distinctions between this statement and the prior one—apparent to the court and both parties—demonstrate that far from 4 https://truthsocial.com/@realDonaldTrum ... 7150329703. 5 Because of the administrative stay on the Order, this statement is not before the court. Before concluding that any statement violated the Order, the court would afford the parties an opportunity to provide their positions on the statement’s meaning and permissibility. Case 1:23-cr-00257-TSC Document 124 Filed 10/29/23 Page 7 of 9 Page 8 of 9 being arbitrary or standardless, the Order’s prohibition on “targeting” statements can be straightforwardly understood and applied. Defendant’s other assertions of vagueness boil down to similar objections that deciding whether a statement violates the Order will necessarily be a fact-bound inquiry. He contends that it may at times be difficult to tell whether an individual is a reasonably foreseeable witness, or to distinguish proclamations of innocence from attacks on prosecutors or witnesses. Motion to Stay at 26–28. But even assuming that is true, it does not follow that “men of common intelligence must necessarily guess at [the] meaning” of the Order’s prohibitions. Hynes v. Mayor of Oradell, 425 U.S. 610, 620 (1976) (citation omitted). It is a “basic mistake” to derive vagueness from “the mere fact that close cases can be envisioned. . . . Close cases can be imagined under virtually any [prohibition].” United States v. Williams, 553 U.S. 285, 305–06 (2008). If a party or their counsel makes a statement that may have violated the Order, the court will assess its substance and context. The fact that it needs to do so with special care in close cases does not render the underlying Order unconstitutionally vague. Consequently, Defendant has failed to make a strong showing that he is likely to succeed on the merits of his appeal. B. Remaining factors The remaining factors also counsel against a stay. Defendant’s brief arguments on each rely entirely on the premise that the court’s Order violated his First Amendment rights. See Motion to Stay at 31 (“[A] showing of likelihood of success on a First Amendment claim necessarily establishes irreparable injury.”); id. (“As for the balancing of harms and the public interest . . . the demonstration of an ongoing violation of the First Amendment rights dictates that a stay should be entered.”). Having rejected that premise, the court reaches the opposite conclusions. Where “there is no showing of a likelihood of success on the merits” of a First Case 1:23-cr-00257-TSC Document 124 Filed 10/29/23 Page 8 of 9 Page 9 of 9 Amendment claim, there is no irreparable injury or public interest favoring a stay. Archdiocese of Wash. v. Washington Metro. Area Transit Auth., 897 F.3d 314, 334–35 (D.C. Cir. 2018). To the contrary, “[f]ew, if any, interests under the Constitution are more fundamental than the right to a fair trial by impartial jurors, and an outcome affected by extrajudicial statements would violate that fundamental right.” Gentile, 501 U.S. at 1075 (internal quotations omitted). As discussed above, in the Order, and during the motion hearing, the court finds that the public interest in the orderly administration of this case requires the Order’s limitations on such statements. II. CONCLUSION For these reasons, Defendant’s Motion to Stay, ECF No. 110, is hereby DENIED, and the administrative stay imposed by the court’s October 20, 2023 Minute Order is hereby LIFTED. Date: October 29, 2023 Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge Case 1:23-cr-00257-TSC Document 124 Filed 10/29/23 Page 9 of 9
Trump Responds to Gag Order Reinstatement by Attacking Potential Witness : The former president attacked Bill Barr shortly after being ordered to stop targeting potential witnesses in his federal election interference trial by Nikki McCann Ramirez Rolling Stone October 30, 2023
Judge Tanya Chutkan reinstated a gag order on Sunday night barring former President Donald Trump from attacking court staff, potential witnesses, and members of the prosecution team in the federal case against him for allegedly working to overturn the results of the 2020 election.
Trump responded by attacking Attorney General Bill Barr, a potential witness in the case, while continuing his public assault on Chutkan.
Chutkan, who is overseeing the federal election interference case, reinstated a partial gag order that had been approved then temporarily appealed in October as Justice Department prosecutors and Trump’s legal team debated the First Amendment grounds of the order. Trump took to Truth Social barely an hour later to attack the judge and former Attorney General Bill Barr, a potential witness in the case.
“I called Bill Barr Dumb, Weak, Slow Moving, Lethargic, Gutless, and Lazy, a RINO WHO COULDN’T DO THE JOB. He just didn’t want to be Impeached, which the Radical Left Lunatics were preparing to do,” Trump wrote just 75 minutes after the gag order was reinstated. “Bill Barr is a LOSER!”
Trump went on to directly attack Judge Chutkan. “I have just learned that the very Biased, Trump Hating Judge in D.C., who should have RECUSED herself due to her blatant and open loathing of your favorite President, ME, has reimposed a GAG ORDER which will put me at a disadvantage against my prosecutorial and political opponents,” Trump wrote at 12:28 a.m., accusing the order of “unconstitutionally [taking] away my First Amendment Right of Free Speech, in the middle of my campaign for President.”
[x] Amee Vanderpool@girlsreallyrule Trump is already attacking Judge Chutkan's Sunday night decision, reinstating his gag order, in a Truth Social post that he made in the middle of the night.
I have just learned that the very Biased, Trump Hating Judge in D.C., who should have RECUSED herself due to her blatant and open loathing of your favorite President, ME, has reimposed a GAG ORDER which will put me at a disadvantage against my prosecutorial and political opponents. This order, according to many legal scholars, is unthinkable! It illegally and unconstitutionally takes away my First Amendment Right of Free Speech, in the middle of my campaign for President, where I am leading against BOTH Parties in the Polls. Few can believe this is happening, but I will appeal. How can they tell the leading candidate that he, and only he, is seriously restricted from campaigning in a free and open manner? It will not stand! Oct 30, 2023 12:28 AM
4:28 AM Oct 30, 2023
In another post early Monday morning, the former president called Chutkan “a TRUE TRUMP HATER.”
“Her Hatred of President DONALD J. TRUMP is so great that she has been diagnosed with a major, and incurable, case of TRUMP DERANGEMENT SYNDROME!!!,” Trump wrote.
While Chutkan has yet to respond to the posts, she would not be the first Judge overseeing a Trump case to level penalties against the former president for violating court-ordered restrictions on his public statements.
Trump has already been fined twice, and threatened with jail, for violating a separate gag order imposed in New York’s civil fraud case against the former president. Judge Arthur Engoron fined Trump a total of $15,000 last week, accusing him of violating an order barring him from attacking court staff. Engoron first slapped Trump with a $5,000 penalty and threatened to revoke his bail after the former president failed to delete a copy of the Truth Social post attacking his clerk from his campaign website. He later added a second, $10,000 penalty after Trump appeared to once again attack a member of his staff while speaking to reporters outside of the courtroom.
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 20, 2023 Decided December 8, 2023
No. 23-3190
UNITED STATES OF AMERICA, APPELLEE v. DONALD J. TRUMP, APPELLANT
Appeal from the United States District Court for the District of Columbia (No. 1:23-cr-00257-1)
D. John Sauer argued the cause for appellant. With him on the briefs were John F. Lauro, Emil Bove, William O. Scharf, and Michael E. Talent.
Brenna Bird, Attorney General, Office of the Attorney General for the State of Iowa, and Eric H. Wessan, Solicitor General, were on the brief for amici curiae Iowa, et al. in support of appellant.
Gene P. Hamilton and Judd E. Stone, II were on the brief for amicus curiae America First Legal Foundation in support of appellant.
Dennis Grossman was on the brief for amicus curiae Christian Family Coalition in support of appellant.
Cecil W. VanDevender, Assistant Special Counsel, U.S. Department of Justice, argued the cause for appellee. With him on the brief were J.P. Cooney, Deputy Special Counsel, Raymond N. Hulser, Counselor to the Special Counsel, James I. Pearce and John M. Pellettieri, Assistant Special Counsels, and Molly G. Gaston and Thomas P. Windom, Senior Assistant Special Counsels.
Before: MILLETT, PILLARD, and GARCIA, Circuit Judges.
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge:* [NOTE: Portions of this opinion contain sealed information, which has been redacted.] A federal grand jury indicted former President Donald J. Trump for conspiring to overturn the 2020 presidential election through unlawful means and for obstructing the election’s certification. Soon thereafter, Mr. Trump posted multiple statements on his social media account attacking potential witnesses in the case, the judge, and the Special Counsel and his staff prosecuting the case. The district court subsequently issued an order restraining the parties and their counsel from making public statements that “target” the parties, counsel and their staffs, court personnel, and “any reasonably foreseeable witness or the substance of their testimony.”
Mr. Trump appeals the district court’s order. His appeal involves the confluence of two paramount constitutional interests: the freedom of speech guaranteed by the First Amendment and the federal courts’ vital Article III duty to ensure the fair and orderly administration of justice in criminal cases. We agree with the district court that some aspects of Mr. Trump’s public statements pose a significant and imminent threat to the fair and orderly adjudication of the ongoing criminal proceeding, warranting a speech-constraining protective order. The district court’s order, however, sweeps in more protected speech than is necessary. For that reason, we affirm the district court’s order in part and vacate it in part.
Specifically, the Order is affirmed to the extent it prohibits all parties and their counsel from making or directing others to make public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding. The Order is also affirmed to the extent it prohibits all parties and their counsel from making or directing others to make public statements about—(1) counsel in the case other than the Special Counsel, (2) members of the court’s staff and counsel’s staffs, or (3) the family members of any counsel or staff member—if those statements are made with the intent to materially interfere with, or to cause others to materially interfere with, counsel’s or staff’s work in this criminal case, or with the knowledge that such interference is highly likely to result. We vacate the Order to the extent it covers speech beyond those specified categories. See 28 U.S.C. § 2106.
I
A
On August 1, 2023, a federal grand jury in Washington, D.C., indicted former President Donald J. Trump on four felony counts of conspiring to overturn the 2020 presidential election. See Indictment ¶¶ 1–4, 127–128. Specifically, the indictment alleges that then-President Trump and his coconspirators “used knowingly false claims of election fraud to get state legislators and election officials to subvert the legitimate election results[,]” “attempted to use the power and authority of the Justice Department to conduct sham election crime investigations[,]” and “attempted to enlist the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results.” Indictment ¶ 10.
The conduct charged in the indictment arises out of then- President Trump’s refusal to concede his loss in the 2020 presidential election. Indictment ¶¶ 1–2. He claimed that there had been outcome-determinative fraud and that he had actually won. Indictment ¶ 2; see also President Donald J. Trump, Statement on 2020 Election Results at 0:34–0:46, 18:11–18:15, C-SPAN (Dec. 2, 2020) (claiming that the election was “rigged” and characterized by “tremendous voter fraud and irregularities”).1
According to the indictment, then-President Trump waged a campaign to remain in power by publicly and privately pressuring state and local officials to overturn the 2020 election results, even though he lacked any proof of relevant irregularities, voter fraud, or vote rigging. Indictment ¶ 10; see, e.g., Donald J. Trump for President, Inc. v. Secretary of Pennsylvania, 830 F. App’x 377, 381 (3d Cir. 2020) (“[C]alling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”).
During the alleged efforts to overturn the 2020 election results, the then-President lambasted several state and local officials, often naming and blaming specific individuals on social media for not supporting his claims of election fraud. Special Counsel Mot. to Ensure that Extrajudicial Statements Do Not Prejudice These Proceedings 2–5, ECF 57 (Sept. 15, 2023) (“Special Counsel Mot.”); see Indictment ¶¶ 28, 32. Mr. Trump’s statements subjected those persons to threats and abuse from his supporters. Special Counsel Mot. 3–5. One official explained: “After the President tweeted at me by name, calling me out the way that he did, the threats became much more specific, much more graphic, and included not just me by name but included members of my family by name, their ages, our address, pictures of our home. Just every bit of detail that you could imagine. That was what changed with that tweet.” Special Counsel Mot. 3; Indictment ¶ 42. Another official explained that he needed additional police protection and avoided [DELETE]. Special Counsel Mot. 3 [DELETE]. And after then-President Trump criticized a governmental office for certifying the election, a member of that office had to [DELETE] when one of the then-President’s supporters posted the official’s address online. Special Counsel Mot. 3 [DELETE].
In addition, then-President Trump is alleged to have publicly criticized and shortly thereafter fired the Director of the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency for making statements reassuring the public about the 2020 presidential election’s security. Indictment ¶ 11; Special Counsel Mot. 4. Two weeks later, a lawyer then working for Mr. Trump publicly stated that the director “should be drawn and quartered. Taken out at dawn and shot.” Special Counsel Mot. 4; Ben Fox, Cybersecurity Official Fired by Trump Sues Over Threats, ASSOCIATED PRESS (Dec. 8, 2020). That statement prompted a wave of death threats against the former official and his family that forced them to evacuate their home until the danger abated. Special Counsel Mot. 4.
The then-President and his campaign also allegedly singled out private individuals. Indictment ¶¶ 21, 31; see id. ¶¶ 26, 29. A Georgia election worker, for example, testified before a congressional committee that she and her family were bombarded with violent and racist threats after the then-President, falsely and without any evidentiary basis, accused her of election misconduct. Select Committee Tr. at 7:22–8:3, 26:24–27:2 (May 31, 2022); Indictment ¶ 31. She testified:
Do you know how it feels to have the President of the United States to target you? The President of the United States is supposed to represent every American, not to target one. But he targeted me, * * * a small-business owner, a mother, a proud American citizen who stood up to help Fulton County run an election in the middle of the pandemic. * * * [W]hen someone as powerful as the President of the United States eggs on a mob, that mob will come.
Special Counsel Mot. 4–5; see Select Committee Tr. at 8:8–20.
B
At a hearing shortly after the indictment, the district court told the parties that it was “committed to ensuring that this case proceeds in the normal course that our criminal justice system prescribes.” Hr’g Tr. 71:3–5, ECF 29 (Aug. 11, 2023). The district court emphasized that it “intend[ed] to ensure that Mr. Trump is afforded all the rights that any citizen would have,” but then cautioned the parties that it would “prevent what the Supreme Court called in Sheppard v. Maxwell[, 384 U.S. 333 (1966),] a ‘carnival atmosphere’ of unchecked publicity and trial by media rather than our constitutionally established system of trial by impartial jury.” Id. 71:11–16. To that end, the district court told both parties “to take special care in [their] public statements about this case[,]” adding that it would “take whatever measures are necessary to safeguard the integrity of these proceedings.” Id. 72:16–19.
Before and after the district court’s warning, Mr. Trump repeatedly used his public platform to denigrate and attack those involved in the criminal case against him. The day after his initial court appearance, Mr. Trump posted on his social media account: “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” Special Counsel Mot. 6. He then shared with his over six million social media followers on Truth Social his view that the district court judge is a “fraud dressed up as a judge[,]” “a radical Obama hack[,]” and a “biased, Trump-hating judge[.]” Special Counsel Mot. 8–9. He labeled the prosecutors in the case “[d]eranged[,]” “[t]hugs[,]” and “[l]unatics[.]” Special Counsel Mot. 8–9; Special Counsel Reply in Support of Special Counsel Mot. 10, ECF 64 (Sept. 29, 2023) (“Special Counsel Mot. Reply”).
The day after Mr. Trump’s “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” post, one of his supporters called the district court judge’s chambers and said: “Hey you stupid slave n[****]r[.] * * * If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly b[***]h. * * * You will be targeted personally, publicly, your family, all of it.” Special Counsel Br. 5; see United States v. Shry, No. 4:23-cr- 413, ECF 1 at 3 (Criminal Complaint) (S.D. Tex. Aug. 11, 2023).
Mr. Trump also took aim at potential witnesses named in the indictment, including former Vice President Michael Pence, whom he accused of going to the “Dark Side[.]” Special Counsel Mot. Reply 9; see Special Counsel Mot. 11 & n.20; Special Counsel Mot. Reply 9 (discussing attacks on former Attorney General Bill Barr).
C
Arguing that Mr. Trump’s statements were “undermin[ing] the integrity of the[] proceedings” by impacting “the impartiality of the jury pool while simultaneously influencing witness testimony[,]” the Special Counsel asked the district court for an order restraining Mr. Trump’s public statements about the trial. Special Counsel Mot. 1, 15. Specifically, the prosecution sought to prohibit (1) “statements regarding the identity, testimony, or credibility of prospective witnesses”; and (2) “statements about any party, witness, attorney, court personnel, or potential jurors that are disparaging and inflammatory, or intimidating.” Special Counsel Mot. 15. After full briefing and a hearing, the district court granted in part and denied in part the Special Counsel’s motion. Dist. Ct. Order at 1 (“Order”).
The district court first explained that an order restricting Mr. Trump’s speech about the District of Columbia or its residents was not necessary at that time to protect against contaminating the jury pool. Hr’g Tr. 82:24–83:4. Instead, the district court held that, on the record before it, any such taint could be addressed through rigorous questioning of potential jurors before empanelment. Id.
On the other hand, the court found that the former President’s speech posed “a significant and immediate risk that (1) witnesses will be intimidated or otherwise unduly influenced by the prospect of being themselves targeted for harassment or threats; and (2) attorneys, public servants, and other court staff will themselves become targets for threats and harassment.” Order at 2. Invoking both a local rule of criminal procedure, see LCrR 57.7(c), and the court’s obligation to “take such steps by rule and regulation that will protect [its] processes from prejudicial outside interferences[,]” Order at 1 (quoting Sheppard, 384 U.S. at 363), the district court ordered:
All interested parties in this matter, including the parties and their counsel, are prohibited from making any public statements, or directing others to make any public statements, that target (1) the Special Counsel prosecuting this case or his staff; (2) defense counsel or their staff; (3) any of this court’s staff or other supporting personnel; or (4) any reasonably foreseeable witness or the substance of their testimony.
Order at 3.
The district court then added that the Order did not prohibit “statements criticizing the government generally, including the current administration or the Department of Justice; statements asserting that Defendant is innocent of the charges against him, or that his prosecution is politically motivated; or statements criticizing the campaign platforms or policies of Defendant’s current political rivals[.]” Order at 3. The district court’s Order does not prohibit statements targeting the court or the judge herself. See Order at 1–3.
D
The district court administratively stayed the Order while it considered Mr. Trump’s motion for a stay pending appeal. Minute Order of Oct. 20, 2023.
Soon thereafter, news broke asserting that Mark Meadows, Mr. Trump’s former Chief of Staff, was cooperating with the Special Counsel in exchange for immunity. See Katherine Faulders, Mike Levine & Alexander Mallin, Ex-Chief of Staff Mark Meadows Granted Immunity, Tells Special Counsel He Warned Trump About 2020 Claims, ABCNEWS (Oct. 24, 2023, 6:11 PM).2 Hours later, Mr. Trump asked on social media whether Meadows was the type of “weakling[] and coward[]” who would “make up some really horrible ‘STUFF’” about Mr. Trump in exchange for “IMMUNITY against Prosecution (PERSECUTION!) by Deranged Prosecutor, Jack Smith.” Special Counsel Resp. in Opp’n to Mot. to Stay 9, ECF 120 (Oct. 25, 2023) (“Special Counsel Stay Opp’n”).
Five days later, the district court denied Mr. Trump’s request for a stay pending appeal to this court. Order at 9, ECF 124 (Oct. 29, 2023). As part of that denial, the district court further clarified that the Order’s reach should be read in light of the court’s discussions with counsel during the motion hearing that led to its issuance. Id. at 5–6.
E
Mr. Trump timely filed an emergency appeal, a motion for a stay of the Order, and a request for an expedited appeal. See Emergency Mot. For Stay Pending Appeal at 1–2 (Nov. 2, 2023). The next day, this court administratively stayed the Order and, because of the approaching trial date, set a highly expedited schedule for the merits appeal. See Per Curiam Order (Nov. 3, 2023).
II
A
We begin with our jurisdiction to hear this interlocutory appeal. Congress has generally limited the jurisdiction of federal courts of appeals to “final decisions of the district courts[.]” 28 U.S.C. § 1291. As a result, a party ordinarily may appeal only after the district court has resolved all claims and has entered a final judgment fully disposing of the case. Van Cauwenberghe v. Biard, 486 U.S. 517, 521–522 (1988); Cincinnati Ins. Co. v. All Plumbing, Inc., 812 F.3d 153, 156 (D.C. Cir. 2016).
One exception to this rule is the collateral-order doctrine, under which an interlocutory district court order may be appealed if it “(1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment.” Ameziane v. Obama, 620 F.3d 1, 5 (D.C. Cir. 2010) (citing Will v. Hallock, 546 U.S. 345, 349 (2006)). In addition, in Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009), the Supreme Court underscored that “the class of collaterally appealable orders must remain ‘narrow and selective in its membership.’” Id. at 113 (quoting Will, 546 U.S. at 350). Jurisdiction exists only if the type of order at issue categorically satisfies the doctrine’s criteria. Id. at 107.
Orders restraining parties’ speech during the pendency of a criminal case categorically satisfy those criteria.
First, such orders, by their nature, conclusively determine whether parties may speak on specified matters pertaining to the criminal trial.
Second, such orders determine an important issue separate from the merits. A defendant’s ability to speak about his criminal trial is an important issue given the First Amendment’s broad protection of free speech and the public interest in the transparency of criminal trials and open discussion of the trial process. See Sheppard, 384 U.S. at 349– 350. “[T]he criminal justice system exists in a larger context of a government ultimately of the people, who wish to be informed about happenings in the criminal justice system, and, if sufficiently informed about those happenings, might wish to make changes in the system.” Gentile v. State Bar of Nevada, 501 U.S. 1030, 1070 (1991).
In addition, speech restrictions in criminal trials arise from the need to protect the trial process and its truth-finding function; assessing their validity does not touch on a defendant’s guilt or innocence or any merits issues in the underlying case. See United States v. Brown, 218 F.3d 415, 420 (5th Cir. 2000); In re Rafferty, 864 F.2d 151, 154 (D.C. Cir. 1988) (holding that an order restraining a civil plaintiff’s ability to disclose information to third persons “is entirely independent of the underlying wrongful discharge claim”).
Third, reviewing such orders after final judgment would not redress or undo any unconstitutional prohibitions of speech that occurred prior to or during trial. The damage to First Amendment interests would be done. And an order regulating speech prior to and during trial almost always will expire by its own terms once final judgment is entered in the criminal case, making any attempted appellate review at the end of the case moot.
In addition, no alternative mechanism for review would suffice. In theory, a party could breach the Order, be held in contempt, and then appeal the contempt ruling. But the Supreme Court has long held that requiring speakers to violate the law before vindicating their right to free speech would excessively chill protected speech. See, e.g., Virginia v. Hicks, 539 U.S. 113, 119 (2003) (“Many persons, rather than undertake the considerable burden * * * of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech[.]”); cf. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158–159 (2014) (“[ i]t is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights[.]”) (quoting Steffel v. Thompson, 415 U.S. 452, 459 (1974)).
For those reasons, we hold that we have jurisdiction under the collateral-order doctrine. See In re Stone, 940 F.3d 1332, 1340 (D.C. Cir. 2019) (“[O]ur Circuit has long allowed nonparties subject to a restrictive order to appeal that order under the collateral order doctrine.”); Rafferty, 864 F.2d at 153–155 (order restraining a civil plaintiff’s ability to disclose information to third persons is appealable under the collateralorder doctrine); see also Brown, 218 F.3d at 420–422 (speech restraint in criminal trial is appealable under the collateralorder doctrine); United States v. Ford, 830 F.2d 596, 598 (6th Cir. 1987) (same).3
B
Whether the Order violates the Constitution is a question of law subject to de novo review. See United States v. Popa, 187 F.3d 672, 674 (D.C. Cir. 1999); United States v. Bronstein, 849 F.3d 1101, 1106 (D.C. Cir. 2017). We review the district court’s factual findings for clear error and will overturn them only if we are “left with the definite and firm conviction that a mistake has been committed.” United States v. Miller, 35 F.4th 807, 817 (D.C. Cir. 2022) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). On our review, this court can “affirm, modify, vacate, set aside or reverse” the district court’s Order. 28 U.S.C. § 2106.
III
Two foundational constitutional values intersect in this case: an individual’s right to free speech and the fair and effective functioning of the criminal trial process and its truth-finding function. Because of the constitutional stakes, orders restricting a defendant’s speech must be drawn no more broadly or narrowly than necessary to ensure the fair administration of justice.
A
The Right to Free Speech
Freedom of speech is a bedrock constitutional right. Americans are free to speak, listen to others, and make up their own minds about their government and the world around them. “The First Amendment reflects ‘a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’” Snyder v. Phelps, 562 U.S. 443, 452 (2011) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). “That is because ‘speech concerning public affairs is more than self-expression; it is the essence of self-government.’” Id. (quoting Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964)).
Political speech in particular is the lifeblood of American democracy. It allows the free exchange of ideas among individuals about governance and the political process. Mills v. Alabama, 384 U.S. 214, 218–219 (1966). “Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.” Id. It also allows voters to make informed decisions about those who seek to represent them in government, including their character, qualifications, and policy platforms. “In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation.” Buckley v. Valeo, 424 U.S. 1, 14–15 (1976).
For that reason, “the First Amendment ‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.” Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)). “The candidate, no less than any other person, has a First Amendment right to engage in the discussion of public issues and vigorously and tirelessly to advocate his own election and the election of other candidates.” Brown v. Hartlage, 456 U.S. 45, 53 (1982) (quoting Buckley, 424 U.S. at 52–53). That discussion is critical to enabling “the electorate [to] intelligently evaluate the candidates’ personal qualities and their positions on vital public issues before choosing among them on election day.” Id.
Free speech also holds government officials accountable. Public criticism and scrutiny of those in power exposes fraud, curbs the abuse of power, and roots out corruption. As relevant here, speech about judicial proceedings, especially criminal prosecutions, promotes transparency in the legal system and “guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.” Sheppard, 384 U.S. at 350. “The judicial system, and in particular our criminal justice courts, play a vital part in a democratic state, and the public has a legitimate interest in their operations.” Gentile, 501 U.S. at 1035.
“[T]o provide adequate ‘breathing space’” for robust public debate and participation, the First Amendment generally shields “insulting, and even outrageous, speech[.]” Snyder, 562 U.S. at 458 (quoting Boos v. Barry, 485 U.S. 312, 322 (1988)); cf. Virginia v. Black, 538 U.S. 343, 358 (2003). At the same time, certain “historic and traditional categories” of speech receive no First Amendment protection, such as defamation, incitement, “[t]rue threats of violence,” and obscenity. Counterman v. Colorado, 600 U.S. 66, 73–74 (2023) (quotation marks omitted).
In addition, even protected speech may, and sometimes must, be regulated when necessary to protect a compelling governmental interest, including the fair administration of a criminal trial. See Sheppard, 384 U.S. at 362–363; Cox v. Louisiana, 379 U.S. 559, 563–565 (1965) (sustaining prohibition on picketing outside a courthouse, even though such activity is “intertwined with expression and association[,]” as necessary to protect trials from outside influence).
B
The Right to a Fair Trial
The Constitution affords Mr. Trump, like all criminal defendants, the “fundamental right to a fair trial.” Strickland v. Washington, 466 U.S. 668, 684 (1984). Foundational to our constitutional system is the requirement that, before the government may deprive a person of liberty, “impartial jurors, who know as little as possible of the case,” must decide the defendant’s guilt “based on material admitted into evidence before them in a court proceeding.” Gentile, 501 U.S. at 1070; see Irvin v. Dowd, 366 U.S. 717, 722 (1961). No one should be punished for a crime without “a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, excitement and tyrannical power.” Chambers v. Florida, 309 U.S. 227, 236–237 (1940).
Mr. Trump’s right to a fair trial does not give him “the right to insist upon the opposite of that right”—that is, a trial prejudiced in his favor. See Singer v. United States, 380 U.S. 24, 36 (1965). The public has its own compelling interest “in fair trials designed to end in just judgments.” Wade v. Hunter, 336 U.S. 684, 689 (1949); see Gentile, 501 U.S. at 1075; Brown, 218 F.3d at 600 n.1 (locating such interest in the common law and Article II’s Take Care Clause).
Accordingly, courts must take steps to protect the integrity of the criminal justice process, Sheppard, 384 U.S. at 363, giving “[f]reedom of discussion * * * the widest range” that is “compatible with the essential requirement of the fair and orderly administration of justice.” Pennekamp v. Florida, 328 U.S. 331, 347 (1946). That standard requires courts to navigate a narrow path. The Constitution gives them very limited authority to restrict the speech of the press and other outsiders to the litigation. Their speech generally may be abridged only if it presents a “clear and present danger to the administration of justice.” Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829, 844 (1978); see Bridges v. California, 314 U.S. 252, 260– 263 (1941).
In fact, court orders restraining speech about an ongoing criminal proceeding are presumptively unconstitutional. Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 558 (1976). In this context, prior restraints can be imposed only if narrowly tailored to redress sufficiently serious threats to the criminal justice process and if no less restrictive alternatives are available. Even then, “there is nothing that proscribes the press from reporting events that transpire in the courtroom.” Sheppard, 384 U.S. at 362–363; see Craig v. Harney, 331 U.S. 367, 374 (1947) (“What transpires in the court room is public property.”).
At the same time, when a case involves extensive media coverage and public interest, or when the parties are trying the case in the media rather than the courtroom, a court cannot sit back and wait for a “carnival atmosphere” to descend before acting. Sheppard, 384 U.S. at 356–363. Quite the opposite. “[T]he primary constitutional duty of the Judicial Branch [is] to do justice in criminal prosecutions[.]” United States v. Nixon, 418 U.S. 683, 707 (1974). As part of that duty, courts must “prevent the prejudice” to the trial process “at its inception.” Sheppard, 384 U.S. at 363; see Nebraska Press, 427 U.S. at 553 (The cure for prejudice to the trial “lies in those remedial measures that will prevent the prejudice at its inception.”) (quoting Sheppard, 384 U.S. at 363). That is because waiting until the trial is over and reversing the conviction would be an ineffective, costly, and wasteful “palliative,” inflicting the additional burdens on a defendant and extra expenses on the taxpayers of a retrial in an already contaminated public atmosphere, with witness recall and evidence growing staler all the while. Sheppard, 384 U.S. at 363; see Nebraska Press, 427 U.S. at 553.
As a result, courts have an ongoing obligation to ensure that speech about a criminal case does not “divert the trial from the ‘very purpose of a court system[,]’” which is “‘to adjudicate controversies, both criminal and civil, in the calmness and solemnity of the courtroom according to legal procedures.’” Sheppard, 384 U.S. at 350–351 (quoting Cox, 379 U.S. at 583 (Black, J., dissenting)). Due process demands that “the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.” Id. at 351 (quoting Patterson v. Colorado ex rel. Attorney General, 205 U.S. 454, 462 (1907)); see Geders v. United States, 425 U.S. 80, 86–87 (1976) (“If truth and fairness are not to be sacrificed, the judge must exert substantial control over the proceedings.”). The courts’ duty to protect trials from outside influence includes protecting court personnel from both the reality and the appearance of undue outside pressure. The Supreme Court “has recognized that the unhindered and untrammeled functioning of our courts is part of the very foundation of our constitutional democracy.” Cox, 379 U.S. at 562 (citing Wood v. Georgia, 370 U.S. 375, 383 (1962)) (sustaining the constitutionality of a state ban on picketing outside a courthouse “with the intent of influencing any judge, juror, witness, or court officer”).
While courts have quite limited authority to quiet the speech of the press and public, the Constitution affords judges broader authority to regulate the speech of trial participants. See, e.g., Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32 n.18 (1984) (noting that “court[s] often find[] it necessary to restrict the free expression of participants” to a trial) (emphasis added) (quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, 104 n.21 (1981)). The Supreme Court has pointedly said that “[n]either prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate [the court’s] function.” Sheppard, 384 U.S. at 363. Courts “must” be proactive, id., and, when warranted, “proscribe[] extrajudicial statements by any lawyer, party, witness, or court official” engaging in “prejudicial” communications, id. at 361. See id. at 359 (“[T]he court should have made some effort to control the release of leads, information, and gossip to the press by police officers, witnesses, and the counsel for both sides.”); see also Seattle Times, 467 U.S. at 36–37 (holding that a court may prohibit a newspaper that is party to a case from publishing information obtained through the discovery process).
In Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), the Supreme Court discussed a state’s authority to regulate the speech of participants in a criminal case. There, a lawyer representing a criminal defendant in an ongoing criminal proceeding held a press conference claiming that the prosecutors were not “honest enough to indict the people who did it,” and that the police were “crooked cops.” Id. at 1059. The state bar initiated disciplinary proceedings against the lawyer for violating a state bar rule prohibiting an attorney from publicly making certain extrajudicial statements. Id. at 1033.
The Supreme Court held that the First Amendment allows a court to prohibit the speech of a trial participant when the speech poses a “substantial likelihood of material prejudice” to an adjudicative proceeding. Gentile, 501 U.S. at 1075. In so ruling, the Court was explicit that the “stringent standard applied in Nebraska Press” does not apply “to speech by a lawyer whose client is a defendant in a criminal proceeding.” Id. at 1065; see id. at 1072–1076. One aspect of the Court’s reasoning focused on lawyers’ roles as “officers of the court,” id. at 1074 (quoting Nebraska Press, 427 U.S. at 601 n.27), a special status that “subjects them to fiduciary obligations to the court and the parties[,]” id. at 1057.
But the Court also drew on the “distinction between participants in the litigation and strangers to it[.]” Gentile, 501 U.S. at 1072–1073. The Court emphasized that it had, in prior cases, “expressly contemplated that the speech of those participating before the courts could be limited.” Id. at 1071– 1073 (citing Seattle Times, 467 U.S. at 32–33, 32 & n.18; Sheppard, 384 U.S. at 363; Sacher v. United States, 343 U.S. 1, 8 (1952)). With this distinction in mind, the Court emphasized that participation in a case gives lawyers a distinctive public status and “special access to information through discovery and client communications[.]” Id. at 1074. Parties, too, have special access to information and accordingly may be subject to speech restrictions not appropriate for outsiders to the case.4
While Gentile involved regulating the speech of counsel for a criminal defendant, the law has long recognized the district court’s authority to control the speech and conduct even of defendants in criminal trials when necessary to protect the criminal justice process. See Nebraska Press, 427 U.S. at 553– 554 (exhorting courts to take “remedial measures that will prevent * * * prejudice * * * [by] * * * the accused” and other persons “coming under the jurisdiction of the court”); Sheppard, 384 U.S. at 363 (similar).
In addition, after indictment, criminal defendants are frequently subjected to “substantial liberty restrictions as a result of the operation of our criminal justice system.” United States v. Salerno, 481 U.S. 739, 749 (1987). More specifically, as a less restrictive alternative to pre-trial detention, Congress granted courts the authority to release indicted defendants under the “least restrictive * * * condition, or combination of conditions [of release], that * * * will reasonably assure the appearance of the person as required and the safety of any other person and the community[.]” 18 U.S.C. § 3142(c)(1)(B). Such conditions commonly include measures that burden criminal defendants’ ability to act, associate, and speak. See id. § 3142(c)(1)(B)(i)–(xiv); see also GEORGE E. BROWNE & SUZANNE M. STRONG, U.S. DEP’T OF JUST. BUREAU OF JUST. STAT., PRETRIAL RELEASE AND MISCONDUCT IN FEDERAL DISTRICT COURTS, FISCAL YEARS 2011–2018, at 7 table 5 (2022);5 AMBER WIDGERY, NAT’L ASS’N OF STATE LEGISLATURES, THE STATUTORY FRAMEWORK OF PRETRIAL RELEASE 5 (2020) (describing “limitations on contact with certain people, groups or places” and “adherence to or creation of protection or no-contact orders” as common statutory options for pretrial release conditions among States).6
As relevant here, Congress expressly authorized federal courts to order a criminal defendant to “avoid all contact with * * * a potential witness who may testify concerning the offense.” 18 U.S.C. § 3142(c)(1)(B)(v); cf. United States v. Perazza-Mercado, 553 F.3d 65, 70–71 (1st Cir. 2009) (canvassing different circuits’ approach to internet restrictions as a condition of supervised release and concluding such restrictions may be imposed upon a showing of particular need).
In this case, the district court prohibited Mr. Trump from speaking to any witnesses to the case, except through or in the presence of counsel. Order Setting Conditions of Release 3, ECF 13 (Aug 3, 2023). Mr. Trump agrees that straightforward prior restraint on his speech is “completely consistent with” the First Amendment because of his status as an indicted defendant. See Oral Arg. Tr. 31:13–32:1.
* * * * *
To sum up, the Constitution requires robust protection of speech about criminal trials and the government’s effort to deprive a defendant of liberty. At the same time, the Constitution requires courts to ensure that outside speech and influences do not derail or corrupt the criminal trial process. On this record, the constitutional path for the presiding judge to protect both free speech and the fair and orderly administration of justice was not to limit what outsiders can say about the trial or trial participants, but to appropriately delimit what trial participants, including the accused, can say publicly to other participants, witnesses, or outsiders.
Given that constitutional backdrop, the Supreme Court’s decisions in Nebraska Press and Gentile provide the starting point for analyzing the district court’s authority to restrict a criminal defendant’s communications about the pending case. Nebraska Press and Gentile both require us to consider: (1) whether the Order is justified by a sufficiently serious risk of prejudice to an ongoing judicial proceeding; (2) whether less restrictive alternatives would adequately address that risk; and (3) whether the Order is narrowly tailored, including whether the Order effectively addresses the potential prejudice. See Nebraska Press, 427 U.S. at 562; Gentile, 501 U.S. at 1075– 1076.
We hold that the district court had the authority to restrain those aspects of Mr. Trump’s speech that present a significant and imminent risk to the fair and orderly administration of justice, and that no less restrictive alternatives would adequately address that risk.We also hold that the district court’s Order was not narrowly tailored and modify its scope to bring it within constitutional bounds.
A
While the Supreme Court has repeatedly said that district courts have the power, where necessary, to restrict the speech of the accused, it has never directly reviewed an order limiting the out-of-courtroom speech of a criminal defendant.
Like any other criminal defendant, Mr. Trump has a constitutional right to speak. And his millions of supporters, as well as his millions of detractors, have a right to hear what he has to say. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756–757 (1976).
Also like any other criminal defendant, Mr. Trump does not have an unlimited right to speak. “Although litigants do not surrender their First Amendment rights at the courthouse door, those rights may be subordinated to other interests that arise in [the trial] setting.” Seattle Times, 467 U.S. at 32 n.18 (formatting modified). In particular, the public has a compelling interest in ensuring that the criminal proceeding against Mr. Trump is not obstructed, hindered, or tainted, but is fairly conducted and resolved according to the judgment of an impartial jury based on only the evidence introduced in the courtroom. See Gentile, 501 U.S. at 1075; Wade, 336 U.S. at 689.
The Supreme Court has instructed courts that when they are imposing orders restricting speech about judicial proceedings, they must in all cases consider both “the imminence and magnitude of the danger” to the judicial process that flows from the speech and “the need for free and unfettered expression.” Landmark Commc’ns, 435 U.S. at 843; see id. at 842–843. Here, the relevant danger is the “substantive evil of unfair administration of justice[,]” Landmark Commc’ns, 435 U.S. at 844 (quoting Bridges, 314 U.S. at 271), and impairment of “the unhindered and untrammeled functioning of our courts [that] is part of the very foundation of our constitutional democracy[,]” Cox, 379 U.S. at 562.
The parties vigorously contest what degree of danger to the judicial process must exist for a district court to restrain a criminal defendant’s speech. Trump Br. 26–29; Special Counsel Br. 20–29.
In Gentile, the Supreme Court held that speech by a trial participant—there, a defense attorney—could be restricted if it posed a “substantial likelihood of material prejudice” to the integrity of the proceedings. 501 U.S. at 1075. That bears some resemblance to this case in that Mr. Trump is a participant in the trial, not an outsider to it. But, as Mr. Trump fairly notes, in adopting the “substantial likelihood of material prejudice” standard in Gentile, the Supreme Court relied in part on lawyers’ roles as officers of the court and the special duties that lawyers owe to the court. See 501 U.S. at 1066–1068.
Criminal defendants, of course, have no similar obligations. In addition, under our system of justice, a criminal defendant—who is presumed to be innocent—may very well have a greater constitutional claim than other trial participants to criticize and speak out against the prosecution and the criminal trial process that seek to take away his liberty.
Given those concerns, we assume without deciding that the most demanding scrutiny applies to the district court’s speech-restricting Order, see Trump Op. Br. 31–34, 43–45, and that only a significant and imminent threat to the administration of criminal justice will support restricting Mr. Trump’s speech.
Mr. Trump disagrees and argues that the court may proscribe his speech only if it poses a “clear and present danger” to the trial process, Trump Br. 26–29, as laid out in Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 842–846 (1978), and Nebraska Press Association v. Stuart, 427 U.S. 539, 559–564 (1976). He offers no alternative test. Oral Arg. Tr. 18:24–20:2. But his proposed rule gets constitutional precedent wrong.
First, Mr. Trump’s approach gives no inch to the need to protect the criminal justice process. He miscasts Supreme Court precedent discussing “clear and present danger” as preventing the district court from doing anything at all to curb speech other than duplicate existing criminal prohibitions against influencing witnesses, 18 U.S.C. § 1512(b), harassing those assisting in a prosecution, id. § 1512(d)(4), and unlawful threats, see, e.g., id. § 875; id. § 1503(a); D.C. Code § 22-407 (misdemeanor threats); id. § 22-1810 (felony threats); see also Counterman, 600 U.S. at 74; Elonis v. United States, 575 U.S. 723, 726 (2015). Tellingly, Mr. Trump was unable to identify any example of speech that could be protectively proscribed by the district court that was not already a violation of the criminal law, and so also of his release condition to comply with applicable federal, state, and District laws. See Oral Arg. Tr. 21:3–19; Order Setting Conditions of Release 1.
The Supreme Court has been clear that the First Amendment permits, and Article III and due process principles require, courts to do more to protect the integrity of the criminal justice process than to shake their finger at a defendant and tell him not to do what the law already forbids. See Sheppard, 384 U.S. at 362–363.
Second, Mr. Trump’s version of the clear-and-present-danger test has no legal mooring. While the Supreme Court’s “clear and present danger” language reflects the Constitution’s great solicitude for free speech, the Supreme Court has said explicitly that “clear and present danger” is not a proper “formula for adjudicating cases.” Landmark Commc’ns, 435 U.S. at 842 (quoting Pennekamp, 328 U.S. at 353 (Frankfurter, J., concurring)); see Gentile, 501 U.S. at 1036 (citing Landmark Commc’ns, 435 U.S. at 842–843). Instead, the Supreme Court has instructed that what “clear and present danger” translates to in practice is that courts must analyze whether any compelling interest justifies an appropriately limited speech restriction. See Landmark Commc’ns, 435 U.S. at 842–843. Yet Mr. Trump has refused to argue for any such weighing, insisting that “clear and present danger” is the only test that the court can apply and that it categorically prohibits any speech-limiting order in this case. Oral Arg. Tr. 18:24– 20:2.
Finally, Mr. Trump’s proposed test fails to account for the difference between trial participants and nonparticipants. Neither Landmark Communications nor Nebraska Press involved restrictions on trial participants’ speech. In fact, the Supreme Court was at pains to point out in Landmark Communications that the case did not involve “any constitutional challenge to a State’s power * * * to punish participants for breach of [the confidentiality] mandate[,]” 435 U.S. at 837 (emphasis added), and the Court explicitly noted that limiting the statute at issue to trial participants “might well save the statute[,]” id. at 837 n.9. Instead, the “narrow and limited question presented” in Landmark Communications was “whether the First Amendment permits the criminal punishment of third persons who are strangers to the inquiry * * * for divulging or publishing truthful information regarding” certain judicial proceedings. Id. at 837 (emphasis added); see id. at 841 (“The question, however, is whether [the State’s] interests are sufficient to justify the encroachment on First Amendment guarantees * * * with respect to nonparticipants such as Landmark.”) (emphasis added); see also id. at 841 n.12.
Notably, every single Supreme Court case applying the clear-and-present-danger standard to restrictions on speech about judicial proceedings (1) was decided before the Supreme Court ruled out “clear and present danger” as a “formula” for courts to apply, Landmark Commc’ns, 435 U.S. at 842 (quoting Pennekamp, 328 U.S. at 353 (Frankfurter, J., concurring)), and (2) involved speech by outsiders to the litigation, see Nebraska Press, 427 U.S. at 568–570 (publications and broadcasting by the press and media); Wood, 370 U.S. at 376–379, 382, 389– 394 (press release by county sheriff speaking in his personal capacity); Craig, 331 U.S. at 369, 376–377 (newspaper editorial and news stories); Pennekamp, 328 U.S. at 336–339, 348–350 (newspaper editorials and cartoon); Bridges, 314 U.S. at 271–273 (newspaper editorials); cf. Landmark Commc’ns, 435 U.S. at 837, 842–846.7
B
The record before the district court and its factual findings demonstrate that some of Mr. Trump’s speech poses a significant and imminent threat to the fair and orderly adjudication of the criminal proceeding against him.
1
The record shows that Mr. Trump has repeatedly attacked those involved in this case through threatening public statements, as well as messaging daggered at likely witnesses and their testimony. For example, the day after his initial appearance in court, Mr. Trump issued a warning: “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” Special Counsel Mot. 6.
The former President has gone after known and potential witnesses, and others closely involved in the 2020 election events around which the indictment and criminal trial center. In the days and weeks following the indictment, Mr. Trump publicly accused former Vice President Pence of “go[ing] to the Dark Side” and of “mak[ing] up stories about” the events of January 6, 2020 (including in a post that also referred to “these Fake Indictments”).8
Two weeks after his indictment and after “reading reports” that the former Georgia Lieutenant Governor Jeff Duncan would be testifying before a grand jury in Fulton County, Georgia, Mr. Trump posted that Duncan “shouldn’t [testify]” and called Duncan a “fail[ure]” and a “loser” who “fought the TRUTH all the way.”9
In addition, apparently in response to news reports that former White House Chief of Staff Mark Meadows might be cooperating with prosecutors, Mr. Trump posted:
I don’t think Mark Meadows would lie about the Rigged and Stollen 2020 Presidential Election merely for getting IMMUNITY against Prosecution (PERSECUTION!) by Deranged Prosecutor, Jack Smith. BUT, when you really think about it, after being hounded like a dog for three years, told you’ll be going to jail for the rest of your life, your money and your family will be forever gone, and we’re not at all interested in exposing those that did the RIGGING — If you say BAD THINGS about that terrible “MONSTER,” DONALD J. TRUMP, we won’t put you in prison, you can keep your family and your wealth, and, perhaps, if you can make up some really horrible “STUFF” about him, we may very well erect a statue of you in the middle of our decaying and now very violent Capital, Washington, D.C. Some people would make that deal, but they are weaklings and cowards, and so bad for the future [of] our Failing Nation. I don’t think that Mark Meadows is one of them, but who really knows? MAKE AMERICA GREAT AGAIN!!!10
The former President has also lashed out at government officials closely involved in the criminal proceeding. He has repeatedly labeled the trial judge as “biased,” a “fraud[,]” and a “hack[,]” Special Counsel Mot. 6–7, and has called the prosecutors “[d]eranged[,]” “thugs[,]” and “[l]unatics[,]” Special Counsel Mot. 8–9; Special Counsel Reply 10. He likewise has posted about the Special Counsel’s wife and spoke publicly about her at a rally following our administrative stay of the Order.11 See Special Counsel Br. 14 n.4.
The record also shows that former President Trump’s words have real-world consequences. Many of those on the receiving end of his attacks pertaining to the 2020 election have been subjected to a torrent of threats and intimidation from his supporters. A day after Mr. Trump’s “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” post, someone called the district court and said: “Hey you stupid slave n[****]r[.] * * * If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly b[***]h. * * * You will be targeted personally, publicly, your family, all of it.” Special Counsel Br. 5; see United States v. Shry, No. 4:23-cr-413, ECF 1 at 3 (Criminal Complaint) (S.D. Tex. Aug. 11, 2023). The Special Counsel also has advised that he has received threats, and that a prosecutor in the Special Counsel’s office whom Mr. Trump has singled out for criticism has been “subject to intimidating communications.” Special Counsel Mot. 12.
The former President has repeatedly attacked both the presiding judge and his law clerk in a New York state-law lawsuit. Since those attacks, the judge’s chambers have been “inundated with hundreds of harassing and threatening phone calls, voicemails, emails, letters, and packages.” New York v. Trump, No. 452564/2022, NYSCEF No. 1631 at 2 (N.Y. Sup. Ct. Nov. 3, 2023). In addition to threatening death or serious harm, callers have labeled the judge and clerk “Nazi[s],” “dirty Jews,” and child molesters. See Trump v. Engoron, No. 2023- 05859, NYSCEF No. 9, Ex. E at 3–5 (N.Y. App. Div. Nov. 22, 2023).
Election officials involved in the 2020 election were subjected to similar attacks. One election official explained: “After the [then-]President tweeted at me by name, calling me out the way that he did, the threats became much more specific, much more graphic, and included not just me by name but included members of my family by name, their ages, our address, pictures of our home. Just every bit of detail that you could imagine. That was what changed with that tweet.” Special Counsel Mot. 3. Another state official explained that he avoided [DELETE]. Special Counsel Mot. 3 [DELETE]. And a local election official had to [DELETE] after then-President Trump criticized his office and a supporter posted his address online. Special Counsel Mot. 3 [DELETE].
Likewise, after former President Trump publicly condemned and then fired a federal official for making statements reassuring the public about the 2020 election’s security, one of Mr. Trump’s campaign’s lawyers publicly stated that the official “should be drawn and quartered. Taken out at dawn and shot.” Special Counsel Mot. 4. After receiving death threats, the official and his family had to evacuate their home. Id.
Others too have had their lives turned upside down after coming within Mr. Trump’s verbal sights. For example, a temporary Georgia election worker testified before Congress that she and her daughter endured “horrible, racist threats” after then-President Trump falsely accused them of election misconduct. Special Counsel Mot. 4–5; Select Committee Tr. 7:22–8:3, 26:24–27:2 (May 31, 2022). She testified that she “had to move out of [her] house because the FBI said it wasn’t safe.” Select Committee Tr. 8:1. People would send messages “say[ing] things like, ‘We know where you live, and we’re coming to get you, n[****]r.’” Select Committee Tr. 27:4–12. Some would show up at her home to confront her, and one person even tried to force her way into the election worker’s mother’s home to effectuate a citizen’s arrest of the election worker. Select Committee Tr. 28:2–29:12. The election worker explained: “Do you know how it feels to have the President of the United States to target you? * * * [W]hen someone as powerful as the President of the United States eggs on a mob, that mob will come.” Special Counsel Mot. 4.
Mr. Trump himself recognizes the power of his words and their effect on his audience, agreeing that his supporters “listen to [him] like no one else.” Transcript of CNN’s Town Hall with Former President Donald Trump, CNN (May 11, 2023).12
Based on that record, the district court made a factual finding that, “when Defendant has publicly attacked individuals, including on matters related to this case, those individuals are consequently threatened and harassed.” Order at 2. Mr. Trump has not shown that factual finding to be clearly erroneous, and we hold that the record amply supports it.
2
Mr. Trump’s documented pattern of speech and its demonstrated real-time, real-world consequences pose a significant and imminent threat to the functioning of the criminal trial process in this case in two respects.
First, Mr. Trump’s messages about known or reasonably foreseeable witnesses that concern their potential participation in the criminal proceeding pose a significant and imminent threat to individuals’ willingness to participate fully and candidly in the process, to the content of their testimony and evidence, and to the trial’s essential truth-finding function.
The law has long recognized the importance of shielding witnesses from external influences that undermine the integrity of the trial process. In Sheppard, the Supreme Court underscored the trial court’s obligation to “insulate[] the witnesses” from external communications that could affect their testimony. 384 U.S. at 359. Similarly, in Estes v. Texas, 381 U.S. 532 (1965), the Supreme Court overturned a criminal conviction because broadcasting of the trial proceedings had created a risk that “[t]he quality of the testimony” would “be impaired” or that “witnesses [would be] reluctant to appear.” Id. at 547. Courts also have authority to exclude witnesses from the courtroom, instruct them not to discuss their testimony with others, and even sequester them pending their testimony—all to protect them and the evidence they offer from external influences. See Geders, 425 U.S. at 87 (approving courts’ power to sequester witnesses so as to “prevent[] improper attempts to influence the testimony in light of the testimony already given”); Perry v. Leeke, 488 U.S. 272, 281 (1989) (discussing the “common practice” of “instruct[ing] a witness not to discuss his or her testimony with third parties until the trial is completed” in order to “lessen the danger that their testimony will be influenced” by others); FED. R. EVID. 615(a) (“At a party’s request, the court must order witnesses excluded from the courtroom so that they cannot hear other witnesses’ testimony. Or the court may do so on its own.”) (emphasis added).
The concern with defendants’ influences on witnesses is so significant that Congress has expressly authorized courts to prevent defendants from communicating with witnesses. See 18 U.S.C. § 3142(c)(1)(B)(v); see generally Nixon, 418 U.S. at 709 (“[T]he public * * * has a right to every man’s evidence[.]”) (quoting United States v. Bryan, 339 U.S. 323, 331 (1949)). That restraint is so commonplace that Mr. Trump does not dispute the court’s authority to have ordered him, as a condition of pretrial release, not to communicate with witnesses except in the presence of counsel. See Oral Arg. Tr. 31:13–32:11.
There is no question that Mr. Trump could not have said directly to Mark Meadows, former Vice President Pence, or former Georgia Lieutenant Governor Duncan any of the statements he posted on social media about their potential discussions with the Special Counsel or grand-jury testimony, and the consequences that would follow. Yet the district court’s prohibition on Mr. Trump’s direct communications with known witnesses would mean little if he can evade it by making the same statements to a crowd, knowing or expecting that a witness will get the message. Cf. Sheppard, 384 U.S. at 359 (restrictions on witnesses observing other witnesses’ testimony mean nothing if “the full verbatim testimony [is] available to them in the press”); Estes, 381 U.S. at 547.
Mr. Trump’s counsel conceded at oral argument that the former President speaking about the case “with a megaphone, knowing that [a] witness is in the audience” would likely present the “same scenario” as Mr. Trump’s calling that witness directly, in violation of his conditions of release. Oral Arg. Tr. 33:12–17. So too if the defendant posts a message on “social media knowing that [witness] is a social media follower of his,” id. 33:20–23, or that the message will otherwise likely reach the witness. In each of these scenarios, the defendant’s speech about witness testimony or cooperation imperils the availability, content, and integrity of witness testimony.
Accordingly, the district court had the authority to prevent Mr. Trump from laundering communications concerning witnesses and addressing their potential trial participation through social media postings or other public comments.
In addition, common sense and “common human experience,” Nebraska Press, 427 U.S. at 563, teach that hostile messages regarding evidentiary cooperation that are publicly relayed to high-profile witnesses have a significant likelihood of deterring, chilling, or altering the involvement of other witnesses in the case as well. The undertow generated by such statements does not stop with the named individual. It is also highly likely to influence other witnesses. Even witnesses not yet publicly identified, who lack the special capacity or resources to protect themselves or their families against the risk of ensuing threats or harm, will be put in fear that, if they come forward, they may well be the next target.
It is the court’s duty and authority to prevent speech by trial participants, including the defendant, when the record shows that their words have an “extraordinary power to undermine or destroy the efficacy of the criminal justice system.” Gentile, 501 U.S. at 1075 (quotation marks omitted); see Sheppard, 384 U.S. at 363. This is such a case.
Second, certain speech about counsel and staff working on the case poses a significant and imminent risk of impeding the adjudication of this case. Courts have a “legitimate interest in protecting [the] judicial system from [outside] pressures,” including protecting court officers from “conscious[] or unconscious[ outside] influence[.]” See Cox, 379 U.S. at 562, 565. Messages designed to generate alarm and dread, and to trigger extraordinary safety precautions, will necessarily hinder the trial process and slow the administration of justice. For example, trial personnel and participants will be distracted or delayed by objectively reasonable concerns about their safety and that of their family members, as well as by having to devote time and resources to adopting safety measures or working with investigators.
Given the record in this case, the court had a duty to act proactively to prevent the creation of an atmosphere of fear or intimidation aimed at preventing trial participants and staff from performing their functions within the trial process. Just as a court is duty-bound to prevent a trial from devolving into a carnival, see Sheppard, 384 U.S. at 357–358, so too can it prevent trial participants and staff from having to operate under siege.
3
Mr. Trump raises three objections to any regulation of his speech at all. None holds up.
First, Mr. Trump argues that actual harm or obstruction to witnesses or the judicial process and its participants must already have occurred before his speech can be regulated. Trump Br. 22; Trump Reply Br. 3. The Supreme Court has said otherwise. Both Nebraska Press (which Mr. Trump embraces) and Sheppard commanded trial courts that they “must” prevent such harms at their “inception,” before they are realized and dysfunction envelops the trial. Nebraska Press, 427 U.S. at 553–554; Sheppard, 384 U.S. at 362–363.
That makes sense. No one is entitled to one free bite at derailing witness testimony or impeding the trial court’s ability to function. A rule that courts are helpless to act until witnesses have been intimidated, violence has been attempted, or a trial participant has been materially hindered from doing her job would “gravely impair the basic function of the courts” in the “fair administration of criminal justice.” Nixon, 418 U.S. at 712–713.
Nor are the court’s hands tied until evidence of direct causation materializes.Such proof would be hard to come by, and requiring a court to conduct a mini-trial on that inquirywhile readying a high-profile case for trial would itself divert and delay the criminal justice process. That presumably is why the Supreme Court recognized in Nebraska Press that the trial court’s assessment of the threat to the court’s functioning must be “of necessity speculative, dealing * * * with factors unknown and unknowable[,]” and may appropriately be grounded both in record facts and “common human experience.” 427 U.S. at 563.
Second, Mr. Trump objects that holding him responsible for his listeners’ responses to his speech unconstitutionally imposes a “classic heckler’s veto,” “regardless of how predictable * * * [Mr. Trump’s supporters’] unruly reactions might be.” Trump Br. 37–38; see Trump Br. 36–39. Not so.
To start, that argument ignores the significant risk of harm caused by Mr. Trump’s own messaging to known or potential witnesses about their participation in the criminal justice process and his menacing comments about trial participants and staff.
The claim also misunderstands the heckler’s veto doctrine. That doctrine prohibits restraining speech on the grounds that it “might offend a hostile mob” hearing the message, Forsyth County v. Nationalist Movement, 505 U.S. 123, 134–135 (1992) (emphasis added), or because its audience might express “hostility to” the message, Cox, 379 U.S. at 551. The harm the district court identified here was not that some members of the public who oppose Mr. Trump’s message might react violently and try to shut down his speech. Cf. National Socialist Party of America v. Village of Skokie, 432 U.S. 43, 43–44 (1977). The concern was instead “how predictable” it has become, Trump Br. 38, that some (but certainly not all, or even many) of Mr. Trump’s followers will act minaciously in response to his words.
Of course, the First Amendment generally does not allow speech to be restricted because of some enthusiastic audience members’ reactions. Outside of a judicial proceeding, ordinarily only speech that rises to the level of incitement of the audience can be banned. See Brandenburg v. Ohio, 395 U.S. 444, 448–449 (1969) (striking down law that failed to distinguish “mere advocacy” from “incitement to imminent lawless action”).
But within a judicial proceeding, a trial court’s duty to protect the functioning of the criminal trial process is not cabined by the incitement doctrine. Sheppard holds that courts may, and sometimes must, limit the speech of trial participants to prevent the prejudice to the trial process caused by third parties. Sheppard involved a criminal trial beset by suffocating press coverage and publicity. 384 U.S. at 358. The press regularly reported on evidence leaked to them by both sides, even though such evidence was never offered into evidence in court. Id. at 360–361. The Supreme Court held that, as a means of addressing and averting harm to the criminal justice process, the trial court should have “proscribed extrajudicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters[.]” Id. at 361. Had the trial court done so, “the news media would have soon learned to be content with the task of reporting the case as it unfolded in the courtroom— not pieced together from extrajudicial statements.” Id. at 362.
In other words, the Supreme Court explained that a protective order restricting trial participants’ speech should have been entered in Sheppard not only because the parties’ expression was itself obstructive, but even more so because outsiders’ reactions and responses to that speech also threatened the integrity of the trial process. At no point in Sheppard did the Supreme Court even hint that evidence demonstrating that the parties were already inciting interfering press coverage would have been needed before the court could act.
So too here. Many of former President Trump’s public statements attacking witnesses, trial participants, and court staff pose a danger to the integrity of these criminal proceedings. That danger is magnified by the predictable torrent of threats of retribution and violence that the district court found follows when Mr. Trump speaks out forcefully against individuals in connection with this case and the 2020 election aftermath on which the indictment focuses. The district court appropriately found that those threats and harassment undermine the integrity of this criminal proceeding by communicating directly or indirectly with witnesses and potential witnesses about their testimony, evidence, and cooperation in the justice process. They also impede the administration of justice by exposing counsel and members of the court’s and counsel’s staffs to fear and intimidating pressure. The First Amendment does not afford trial participants, including defendants, free rein to use their knowledge or position within the trial as a tool for encumbering the judicial process.13
Third, Mr. Trump asserts that, because he is running for office, the trial is at issue in the campaign, meaning his comments about the trial are political speech that cannot be regulated without the strictest showing of necessity. Proactive concerns about harm to the trial process, in his view, do not suffice. See Trump Br. 31–34.14
The First Amendment unquestionably affords political speech robust protection, and courts undoubtedly must tread carefully when regulating such communications. See McIntyre v. Ohio Elec. Comm’n, 514 U.S. 334, 347 (1995) (“No form of speech is entitled to greater constitutional protection” than “[c]ore political speech.”).
But there is another fundamental constitutional interest at stake here. The existence of a political campaign or political speech does not alter the court’s historical commitment or obligation to ensure the fair administration of justice in criminal cases. A trial participant’s engagement in political speech cannot degrade or diminish that essential judicial function. Mr. Trump acknowledges as much by accepting his pretrial release condition that he cannot speak to witnesses in the case about political matters or otherwise. He cannot evade that legitimate limitation by dressing up messages to witnesses in political-speech garb.
For the reasons outlined above, this record establishes the imminence and magnitude, as well as the high likelihood, of harm to the court’s core duty to ensure the fair and orderly conduct of a criminal trial and its truth-finding function. That significant and imminent threat to the core functioning of the judicial branch reflected in this record constitutes a compelling interest. See Nixon, 418 U.S. at 712–713; In re Murphy-Brown, 907 F.3d 788, 797 (4th Cir. 2018) (“Ensuring fair trial rights is a compelling interest * * * when there is a ‘reasonable likelihood’ that a party would be denied a fair trial without the order under challenge.”) (quoting In re Russell, 726 F.2d 1007, 1010 (4th Cir. 1984)); see also Williams-Yulee v. Florida Bar, 575 U.S. 433, 446 (2015) (“[P]ublic perception of judicial integrity is ‘a state interest of the highest order.’”) (quoting Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 889 (2009)). On the record before us, that compelling interest establishes a sufficient predicate for the district court to have imposed some limitation on trial participants’ speech. The constitutional solicitude for political speech remains, though, and requires that less restrictive alternatives not be viable and that the scope of the order be narrowly tailored.
C
No less-speech-restrictive alternative could viably protect against the imminent threat to the participation of witnesses, trial participants, and staff in this criminal matter, or the full, fair, and unobstructed receipt of relevant evidence. See Nebraska Press, 427 U.S. at 563–565 (discussing “measures short of an order restraining” speech); Gentile, 501 U.S. at 1075 (same).
We note that the district court tried a less restrictive approach first. Shortly after the indictment, she cautioned the parties and counsel against speech that would prejudice the trial process and sought their voluntary compliance. Hr’g Tr. 72:7– 17, ECF 29 (Aug. 11, 2023) “[E]ven arguably ambiguous statements from parties or their counsel, if they could reasonably be interpreted to intimidate witnesses or to prejudice potential jurors, can threaten the process. * * * I caution all of you and your client, therefore, to take special care in your public statements about this case.” Id. That warning was not heeded, necessitating a more direct measure.
Self-regulation is just one possible alternative for a court to consider before restraining speech. Nebraska Press identified four others: questioning prospective jurors, instructing seated jurors to ignore extrajudicial statements, moving the trial to a different location, and postponing the trial. 427 U.S. at 563–564. We agree with the district court that none was a viable option to respond to the nature and character of the harm posed in this case.
The district court carefully considered whether questioning prospective jurors during voir dire or instructing seated jurors to disregard information would suffice. The court found that those measures would redress any taint from Mr. Trump’s repeated criticisms of the District of Columbia and its residents. See, e.g., Special Counsel Mot. 8 (Mr. Trump calling the District of Columbia a “FILTHY AND CRIME RIDDEN EMBARRASSMENT TO OUR NATION”). For that reason, the court rejected the Special Counsel’s request that the district court restrict speech “regarding the District of Columbia or its jury pool.” Hr’g Tr. 83:2; see Hr’g Tr. 82:25–83:4 (“I am confident that the voir dire process and cautionary jury instructions can filter out those statements’ influence on the jury.”).
Those measures, however, would do nothing to prevent or redress the harm to witnesses’ participation or to staff beleaguered by threats or harassment. If a witness’s testimony were to change, or if a reluctant potential witness were to decide not to come forward because of the former President’s public statements, no amount of questioning or instructing jurors could undo that harm. Likewise, if court and prosecution staff are diverted from their work by the need to take extra safety precautions to protect themselves and their families, or are distracted by the burdens of constant vigilance, none of the proposed measures regarding the jury would mitigate that interference.
Moving the trial to a different location would also be ineffective. Mr. Trump’s rhetoric has national reach. See Special Counsel Mot. Reply 9 (noting that Mr. Trump has more than 6 million followers on the platform Truth Social).15 A change of scene would not ameliorate the reasons for a witness’s reluctance. And the staffs of court and the respective litigation teams would be equally subject to interference, regardless of locale.
Delaying the trial date until after the election, as Mr. Trump proposes, would be counterproductive, create perverse incentives, and unreasonably burden the judicial process. Allowing prejudicial statements to go unchecked for an even longer pre-trial period would simply compound the problem. Delay would not bring back witnesses who have been stifled by Mr. Trump’s commentary and the reactions of those whom he says “listen to [him] like no one else.” See Transcript of CNN’s Town Hall with Former President Donald Trump, CNN (May 11, 2023).16 In addition, postponing trial would incentivize criminal defendants to engage in harmful speech as a means of delaying their prosecution. Mr. Trump has repeatedly asked to push back the trial date in this case for two additional years, and the district court has considered and denied those requests. See, e.g., Def. Resp. Opp. Special Counsel’s Proposed Trial Calendar 1–3, ECF 30 (Aug. 17, 2023) (proposing April 2026 trial date); Pretrial Order ¶ 1, ECF 39 (Aug. 28, 2023) (setting March 4, 2024 trial date); see also Order at 3–4, ECF 82 (Oct. 6, 2023) (denying in part Mr. Trump’s request for a 60-day deadline extension); Order at 1– 3, ECF 146 (Nov. 7, 2023) (denying in part Mr. Trump’s request for a three-month deadline extension). A criminal defendant cannot use significantly and imminently harmful speech to override the district court’s control and management of the trial schedule. Delays also “entail serious costs to the [judicial] system,” Gentile, 501 U.S. at 1075, and frustrate the public’s interest in the swift resolution of criminal charges.
Mr. Trump suggests that, as an alternative, the court should follow the district court’s lead in United States v. Brown, 218 F.3d 415 (5th Cir. 2000), and suspend the Order in the months leading up to the election. See Trump Br. 32; Trump Reply Br. 1, 16; Oral Arg. Tr. 23:25–24:3; 26:9–19. That proposal is not remotely viable.
In Brown, the court of appeals held that a criminal defendant’s speech could be restrained pending trial even though the defendant was simultaneously running for Louisiana Insurance Commissioner. 218 F.3d at 418–419, 428–432. The district court later chose to suspend its order for the roughly seven weeks leading up to the general election to facilitate Brown’s campaigning. Id. at 419. But no good deed goes unpunished. Soon after the order was lifted, some of the defendants released to the media telephone recordings relevant to the case and conducted interviews about the recordings. Id. That forced the district court to partially reimpose the gag order. Id. At no point did the court of appeals address the necessity of the district court’s decision to temporarily lift its speech order.
In this case, the general election is almost a year away, and will long postdate the trial in this case. See Pretrial Order ¶ 1 (Aug. 28, 2023), ECF 39. The district court also cannot feasibly suspend the Order for the weeks leading up to each of the upcoming primary elections because contests for the Republican nomination continue every month in 2024 from January through June. See FED. ELECTIONS COMM’N, 2024 PRELIMINARY PRESIDENTIAL AND CONGRESSIONAL PRIMARY DATES (2023).17 Suspending the Order for the leadup to each of those primary elections would be the equivalent of no Order at all. And no Order at all is not a less restrictive alternative.
