Trump Gag Order Is ‘Unconstitutional’ and ‘Dangerous,’ Says Prominent Law Professor

Constitutional scholar Jonathan Turley of George Washington University testifies before the House Judiciary Committee in the Longworth House Office Building on Capitol Hill in Washington on Dec. 4, 2019. (Chip Somodevilla/Getty Images)

Prominent legal scholar Prof. Jonathan Turley at George Washington University said on Friday that the gag order imposed on former President Donald Trump in his election case is wrong-headed and “unconstitutional.”

Mr. Turley made the remarks in an appearance on Fox News’ “The Ingraham Angle” on Friday, shortly after a federal appeals court put a temporary freeze on the gag order against President Trump while his appeal plays out before the court.

“They decided in perhaps an abundance of caution to order this stoppage until they can give it a full review,” Mr. Turley said on the program. “The reason I think this could be quite significant is because I think the order is unconstitutional.”

The gag order saga was triggered by a request by special counsel Jack Smith and imposed when U.S. District Judge Tanya Chutkan issued the order on Oct. 17.

Mr. Turley said that Mr. Smith’s request to impose the gag order was “equally unconstitutional” and that even one of President Trump’s most vocal critics, the American Civil Liberties Union (ACLU), has denounced the gag order.

It has “drawn the criticism of even the ACLU, which is a staunch critic of Donald Trump,” Mr. Turley said. “But the ACLU has said, ‘Look, this is flagrantly unconstitutional.’”

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The gag order was imposed in the election interference case the former president faces in Washington, D.C.

The case is one of a handful President Trump faces—involving a total of 91 felony counts—as he remains the front-runner for the 2024 Republican presidential nomination.

President Trump maintains he is innocent of all charges and that the various accusations represent an effort by his political opponents to undercut his chances to win the race for the White House.

“This order, according to many legal scholars, is unthinkable!” President Trump said in a post on Truth Social, adding that he believes it “illegally and unconstitutionally” takes away his protected First Amendment rights.

Former U.S. President Donald Trump disembarks his plane "Trump Force One" at Aberdeen Airport in Scotland on May 1, 2023. (Jeff J. Mitchell/Getty Images)

‘Overbroad and Dangerous’

A day after Judge Chutkan imposed the gag order, Mr. Turley penned an op-ed arguing that the order represents a freedom of speech violation that limits the ability of President Trump—and others involved in the case like attorneys—from raising objections to alleged abuses of government.

“This order should concern everyone who values freedom of speech,” the law professor wrote in the Oct. 18 op-ed. “While the odds may favor Chutkan on appeal, this order should be overturned as overbroad and dangerous.”

With its decision to put the gag order on hold on Friday, the three-judge panel of the U.S. Court of Appeals for the D.C. Circuit effectively gave a nod to Mr. Turley’s line of reasoning.

However, the panel noted in its order that it “should not be construed in any way as a ruling on the merits of that motion” and that the aim of the temporary freeze is to give the court an opportunity to consider the Trump legal team’s emergency motion for a stay while the appeal makes its way through the courts.

President Trump’s attorneys have denounced the order, arguing in an emergency motion that it violates constitutionally protected free speech.

“No court in American history has imposed a gag order on a criminal defendant who is actively campaigning for public office—let alone the leading candidate for President of the United States,” they wrote. “The Gag Order violates the First Amendment rights of President Trump and over 100 million Americans who listen to him.”

Joining President Trump’s attorneys in opposing the gag order was ACLU executive director Anthony D. Romero, who described Judge Chutkan’s order as “too broad and too vague” and that “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.”

‘Central to the American Fabric’

The gag order—currently on hold pending appeal—prohibited President Trump from making any public statements or directing others to make any public statements that “target” the prosecution and defense legal teams, court staff, and supporting personnel, and any “reasonably foreseeable” potential witnesses or their testimony in the case.

In granting its administrative stay pending appeal, the appeals court gave President Trump’s lawyers until Nov. 8 to file a brief in response. It gave prosecutors until Nov. 14 to submit their response, with oral arguments scheduled for Nov. 20.

The gag order in the election case in Washington isn’t the only one imposed on the former president.

He was also handed a gag order in a separate civil case in New York last month. That case is being pursued by the state Attorney General Letitia James, and the former president has allegedly violated that order twice, resulting in fines of $15,000.