It appears that Donald Trump has crafted a win-win situation for himself out of the gag order in his federal election subversion trial.
On Monday, a three-judge panel of the U.S. Court of Appeals indicated that it may pare back the October 17 gag order preventing the former president and his team from talking smack about court staff, the prosecution, and any potential witnesses as he runs for a second term in the White House. Still, the panel noted, Trump is not above the law and should be restricted from engaging in witness intimidation.
“There’s a balance that has to be undertaken here, and it’s a very difficult balance,” said Judge Patricia Millett, who ruled on the appeal, according to The Washington Post. “We’ve got to use a careful scalpel here and not step into really sort of skewing the political arena, don’t we?”
But either way that the panel rules, Trump will likely come out on top. If Trump wins the appeal, he’ll have an open floor to vilify special counsel Jack Smith, who is leading the prosecution behind two of Trump’s criminal trials. Previously, Trump has lambasted Smith as a “lunatic” and referred to his staff as “thugs.”
However, if Trump loses the appeal, it will effectively add a new weapon to his arsenal on the campaign trail, the claim that the state is preventing him from running for president again. As CNN’s Stephen Collinson wrote, this is part of the former president’s larger assault on American institutions. “It’s hard to see how the legal system escapes the fate of other institutions of accountability whose images have been tarnished after seeking to contain or expose the ex-president’s unique brand of rule breaking,” Collinson argued.
Trump’s legal team has argued that restricting his speech in any matter is an unconstitutional assault to his freedom of political speech, but that may not fly with the judge’s panel, which is responsible for the scope of rights permitted to a criminal defendant, especially one accused of thwarting the 2020 election, reported CNN.
Meanwhile, the original gag order, issued by U.S. District Judge Tanya Chutkan, never prevented Trump from attacking his opponents on the campaign trail. Instead, it explicitly permitted the former president to assail any of his formal political rivals, from President Joe Biden to former Vice President Mike Pence.
Trump has been charged with four felonies related to his efforts to subvert the 2020 presidential election results. He has pleaded not guilty.