Judge Rejects ACLU Opposition to Trump Gag Order

She did specify that the order did not strip First Amendment rights entirely because President Trump could still criticize President Joe Biden.

Republican presidential candidate and former President Donald J. Trump speaks at the Republican Jewish Coalition in Las Vegas, Nev., on Oct. 28, 2023. Madalina Vasiliu/The Epoch Times

U.S. District Judge Tanya Chutkan rejected a motion filed by the American Civil Liberties Union (ACLU) to file an amici brief opposing the gag order on former President Donald Trump.

President Trump is being prosecuted by special counsel Jack Smith, who alleges that the former president interfered with the 2020 elections via “deceit” and “dishonest” means. The special counsel’s office had proposed a gag order, and after a hearing, Judge Chutkan granted a gag order, albeit of a different nature than originally proposed.

“Although courts have in rare instances exercised their discretion to permit third-party submissions in criminal cases, neither the Federal Rules of Criminal Procedure nor the Local Criminal Rules contemplate the filing of amicus curiae briefs,” Judge Chutkan wrote in a short order on Oct. 31.

“At this time, the court does not find it necessary to depart from the ordinary procedural course by permitting this filing.”  She has similarly rejected all other motions to file third-party briefs.

ACLU Defends Trump Speech

The ACLU had on Oct. 25 stated that the judge’s order was both “vague” and “impermissibly broad,” similar to arguments that Trump attorneys have made as they appeal the gag order.

While the special counsel’s office originally sought to prohibit President Trump from making statements about Washington, his belief that the prosecution is politically motivated, and remarks related to the case that are “inflammatory” or “disparaging,” the judge took a different route.

Judge Chutkan prohibited statements that “target” the prosecution and defense legal teams, court staff, and potential witnesses. In the opinion filed along with her order, she did not elaborate on what “target” meant.

She did specify that the order did not strip First Amendment rights entirely because President Trump could still criticize President Joe Biden, who is his chief political rival in the polls, as well as the government in general.

ACLU executive Anthony Romero had made clear that he was no supporter of President Trump, saying “no modern-day president did more damage to civil liberties” than he, but that the ACLU was defending the First Amendment.

“If we allow his free speech rights to be abridged we know that other unpopular voices—even ones we agree with—will also be silenced,” he stated. “As much as we disagreed with Donald Trump’s policies, everyone is entitled to the same First Amendment protection against gag orders that are too broad and too vague.”

Temporary Stay

President Trump’s legal team is appealing the gag order and had requested that the judge lift it during the process.

Judge Chutkan agreed to lift the order while both parties submitted responses to the motion, but ultimately decided that she would not stay, or pause, the gag order while an appeal is in progress.

She wrote that precedent backs up the opinion that criminal defendants do not always get to retain all First Amendment rights and that in the interest of fair judicial proceedings, the court will sometimes restrict what either party is allowed to say publicly.

Mark Meadows Story

President Trump’s attorneys and Judge Chutkan both weighed in on recent stories about Mark Meadows, former Trump chief-of-staff, and the gag order.

Media reports initially claimed that Mr. Meadows had testified with Mr. Smith’s team in exchange for immunity, but sources later backtracked, leading to retractions and apologies. Mr. Meadows through his attorney publicly stated that the story was not true.

President Trump’s attorneys argued that had the gag order been in place, President Trump would not have been allowed to say anything about the story as Mr. Meadows is a potential witness.

The story and subsequent conversation still would have been widely disseminated. But President Trump would not have been able to comment on Mr. Meadows, the initial story, nor the corrections.

“Mark Meadows never told me that allegations of significant fraud (about the rigged election!) were baseless,” President Trump wrote in a post on Truth Social. “He certainly didn’t say that in his book!”

Mr. Meadows had authored a book where he had said it was the duty of the president to investigate claims of election fraud and voting irregularities out of a responsibility to voters.

Judge Chutkan wrote that President Trump should not have been able to make the post about Mr. Meadows, “and for good reason.”

“The statement singles out a foreseeable witness for purposes of characterizing his potentially unfavorable testimony as a ‘lie’ ’made 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,” she wrote.

She clarified that her original use of “target” was meant to address “risks associated with criticizing potential witnesses” as well as “using praise rather than criticism” to “affect potential witnesses’ testimony.

“The Truth Social post would almost certainly violate the order under any reasonable definition of ’targeting,'” she wrote.