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Former President Donald Trump and his legal team have filed a new motion in his federal election interference case aimed at reversing the gag order, one that has been considered a longshot by many observers.
The federal case against Trump was brought by the Department of Justice (DOJ) and Special Counsel Jack Smith pertaining to the former president's efforts to contest and overturn the results of his 2020 election loss to Joe Biden, which ultimately led to the January 6, 2021, riot at the U.S. Capitol.
Trump in August was indicted on four counts, including conspiracy to defraud the U.S. government and conspiracy to obstruct an official proceeding. It is one of four criminal cases Trump is facing, which include 91 felony charges, as he campaigns to retake the White House in 2024. He pleaded not guilty to all counts in all cases and said they are an effort to impede his campaign.
In October, Judge Tanya Chutkan issued a gag order against Trump and other "interested parties," barring them from making public comments about Smith, his staff, court personnel or any potential future witnesses and their testimony. Prosecutors argued that the order was necessary to protect the integrity of the judicial proceedings.
This month, a three-judge panel with the U.S. Circuit Court of Appeals in Washington, D.C., opted to keep the order largely in place but narrowed it to allow for public comments about Smith only.
In a Monday filing, attorneys for Trump requested that the appeals court reconsider the appeal with all 15 member judges presiding over the decision, a move referred to as an "en banc petition." The legal team argued that the gag order as it stands is a violation of Trump's First Amendment rights.
"The [appeals court's] opinion holds that President Trump must be silenced to protect trial participants from possible threats or 'harassment' from unrelated third parties," the petition reads. "In doing so, the opinion conflicts with decisions of the Supreme Court and other Circuits, warranting en banc consideration both to secure uniformity of this Court's decisions and because of the question's exceptional importance."
As noted by a report from CNBC, which called the new appeal effort a "longshot," such en banc petitions have rarely worked.
"Trump has nothing to lose by seeking review from the full court," former U.S. Attorney and legal analyst Barbara McQuade told Newsweek. "It's a bit of a Hail Mary throw on the merits, but even an adverse ruling plays into his false campaign narrative that the courts are out to get him, too."
Joyce Vance, another former U.S. attorney, argued in a post on X, formerly Twitter, that Trump's intention is merely to "delay, delay, delay." Numerous legal experts, including Palm Beach County, Florida, State Attorney Dave Aronberg, have surmised that Trump's main strategy in handling his various legal battles has been to try to delay them long enough that he might be able to retake the White House in 2024 and use the power of the presidency to make the cases go away.
"This is part of Trump's delay strategy," Aronberg wrote in a statement to Newsweek. "He wants to push this trial past the 2024 election, which is why he is asking for a hearing before the full appellate court even though it won't succeed."
Update 12/18/23, 4:57 p.m. ET: This article was updated with a statement from Dave Aronberg.
About the writer
Thomas Kika is a Newsweek weekend reporter based in upstate New York. His focus is reporting on crime and national ... Read more