(Photo
by
Alex
Wong/Getty
Images)
Today
the
US
Court
of
Appeals
for
the
DC
Circuit
pared
back
but
still
affirmed
Judge
Tanya
Chutkan’s
October
order
banning
Donald
Trump
from
attacking
witnesses
in
his
election
interference
case.
The
gag
order
lives
to
fight
another
day.
Two
months
ago,
the
trial
judge
imposed
a
limited
order
barring
Trump
—
well,
all
parties,
LOL
—
from
statements
“targeting”
witnesses,
court
staff,
and
attorneys
in
the
case.
Trump’s
lawyer
John
Sauer
insisted
that
his
client
had
an
absolute
First
Amendment
right
to
attack
potential
witnesses
Mike
Pence,
Bill
Barr,
and
Gen.
Mark
Milley,
and
even
Special
Counsel
Jack
Smith’s
wife.
In
fact
his
maximalist
position
would
have
essentially
voided
all
gag
orders,
since
he
claimed
that
the Brandenberg
incitement
standard
applied.
As
the
District
and
Circuit
courts
both
noted,
this
would
mean
that
the
only
gag-able
speech
would
be
statements
which
are
actually
criminal
—
and
that
cannot
possibly
be
the
standard.
“[H]is
proposed
rule
gets
constitutional
precedent
wrong,”
Judge
Patricia
Millet
wrote
for
the
unanimous
panel,
which
included
Judges
Cornelia
Pillard
and
Brad
Garcia.
They
affirmed
Judge
Chutkan’s
order,
insofar
as
it
relies
on Gentile
v.
State
Bar
of
Nevada,,
501
U.S.
1030
(1991),
which
set
bar
for
restriction
on
speech
which
presents
“serious
risk
of
prejudice
to
an
ongoing
judicial
proceeding.”
Indeed,
as
at
the
oral
argument,
the
panel
more
or
less
rubbished
Trump’s
arguments
in
their
entirety.
“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,”
the
judges
agreed,
noting
that
Trump
has
a
long
history
of
targeting
his
political
enemies,
after
which
they
face
a
torrent
of
threats
and
abuse,
from
which
it’s
safe
to
infer
that
he
intends
the
result.
And
no,
for
the
love
of
God,
riling
your
supporters
up
to
harass
someone
is
NOT
a
“classic
heckler’s
veto,”
as
Sauer
and
John
Lauro
have
both
argued
repeatedly.
That
doctrine
prohibits
restraining
speech
on
the
grounds
that
it
“might
offend
a
hostile
mob”
hearing
the
message,
or
because
its
audience
might
express
“hostility
to”
the
message.
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.
The
concern
was
instead
“how
predictable”
it
has
become,
that
some
(but
certainly
not
all,
or
even
many)
of
Mr.
Trump’s
followers
will
act
minaciously
in
response
to
his
words.
[Citations
omitted.]
The
appeals
court
was
similarly
unimpressed
with
Trump’s
claim
that
it’s
an
unlawful
prior
restraint
to
impose
a
gag
order
in
the
absence
of
evidence
that
a
witness
was
actually
intimidated
or
without
detailing
specific
threats
against
court
staff
on
the
public
docket.
“No
one
is
entitled
to
one
free
bite
at
derailing
witness
testimony
or
impeding
the
trial
court’s
ability
to
function,”
the
panel
scoffed,
noting
that
Judge
Chutkan
has
received
at
least
one
racist
death
threat
which
led
to
an
indictment.
But,
the
ban
on
“targeting”
witnesses
was
modified
to
a
ban
on
“public
statements
about
known
or
reasonably
foreseeable
witnesses
concerning
their
potential
participation
in
the
investigation
or
in
this
criminal
proceeding.”
So,
for
instance,
Trump
can
resume
calling
Bill
Barr
a
“loser,”
he
just
can’t
say
“he’s
a
loser
who
shouldn’t
testify.”
As
the
court
noted,
the
trial
court
order
was
based
on
a
need
to
prevent
witness
intimidation,
not
to
protect
the
venire
by
preserving
the
credibility
of
witnesses,
and
so
generalized
criticism
of
potential
witnesses
can’t
be
barred.
(It
should
be
noted
that
the
appellate
court
made
this
argument
more
or
less
sua
sponte,
since
Trump’s
lawyers
were
far
too
busy
howling
about
the
supposedly
gross
assault
on
the
First
Amendment
to
advocate
for
some
kind
of
rational
compromise.)
Similarly,
the
trial
court’s
ban
on
criticism
of
Special
Counsel
Jack
Smith
himself
is
out:
“As
a
high-ranking
government
official
who
exercises
ultimate
control
over
the
conduct
of
this
prosecution,
the
Special
Counsel
is
no
more
entitled
to
protection
from
lawful
public
criticism
than
is
the
institution
he
represents.”
Trump
is
taking
it
with
his
usual
grace
and
aplomb:
An
Appeals
Court
has
just
largely
upheld
the
Gag
Order
against
me
in
the
ridiculous
J6
Case,
where
the
Unselect
January
6th
Committee
deleted
and
destroyed
almost
all
Documents
and
Evidence,
saying
that
I
can
be
barred
from
talking
and,
in
effect,
telling
the
truth.
In
other
words,
people
can
speak
violently
and
viciously
against
me,
or
attack
me
in
any
form,
but
I
am
not
allowed
to
respond,
in
kind.
What
is
becoming
of
our
First
Amendment,
what
is
becoming
of
our
Country?
We
will
appeal
this
decision!
Weak!
Clearly
he
hasn’t
read
it
and
is
just
making
a
token
whine
in
deference
to
the
base.
But
it’ll
probably
raise
a
few
hundred
thousand
dollars,
so
… mission
accomplished.
US
v.
Trump [District
Docket
via
Court
Listener]
US
v.
Trump [Circuit Docket
via
Court
Listener]
Liz
Dye lives
in
Baltimore
where
she
writes
about
law
and
politics
and
appears
on
the Opening
Arguments podcast.