On Thursday, attorneys for 2024 GOP frontrunner Donald Trump filed an appeal in the US Court of Appeals for the District of Columbia to a gag order reinstated by Judge Tanya Chutkan on Monday in the federal case regarding January 6, 2021 and attempts to challenge the results of the 2020 election.
"No court in American history has imposed a gag order to silence any political candidate—until now. The district court’s unconstitutional Gag Order prevents President Trump—the leading candidate for President of the United States—from engaging in core political speech, which is entitled to the highest level of protection under the First Amendment," the emergency motion began.
"The Biden Administration chose to indict President Trump in the middle of campaign season in a politically motivated attempt to derail his candidacy, and the First Amendment allows President Trump to speak out against this unconstitutional tyranny."
The appeal states that the gag order not only violates Trump’s civil rights, but also the "civil rights of over 100 million Americans who follow President Trump and have a First Amendment right to receive and listen to his speech."
"The voters of America have a fundamental right to hear the uncensored voice of the leading candidate for the highest office in the land. Today, President Trump has filed an emergency motion to halt the gag order in the US Court of Appeals for the DC Circuit. The Court of Appeals should immediately stay the unconstitutional Gag Order, and speedily reverse it."
The motion states that the prosecution cited in their motion for a gag order a period of time nearly three years ago that Trump had made statements about certain individuals "and the individuals whom he targeted were subject to threats and harassment," as well as screenshots of social media posts from Trump in August criticizing the Biden Department of Justice, potential witnesses in the case Rudy Giuliani and Mike Pence.
"The prosecution produced no evidence that any prosecutor or witness had been harassed or threatened after any of these posts, nor any evidence that any individual had felt intimidated."
The motion argues that the gag order is an "immediately appealable collateral order," and that the gag order "restricts core political and campaign speech."
Trump’s team also argued that the gag order "silences public criticism of quintessential public figures — speech entitled to the highest level of First Amendment protection."
"Particularly offensive is the Gag Order’s one-sided nature. It prevents President Trump from 'targeting' senior public figures—such as Vice President Pence and Attorney General Barr—who routinely attack him and his fitness for the Presidency. And it prevents him from responding to the Special Prosecutor, who has made inflammatory public comments about President Trump, and whose team evidently leaks confidential details to the press," the motion states.
The gag order does not withstand "any level of scrutiny," the motion argues, stating that "the prosecution made no showing that suppressing President Trump’s speech would serve any important or compelling interest."
The motion states that the gag order had been entered while the case had been pending for around three months already, and while the prosecution gave 17 examples of statements by Trump that were considered "objectionable," it did not "produce any evidence that any prosecutor, witness, or court staffer experienced 'threats' or 'harassment' after President Trump’s speech."
The gag order is not "narrowly tailored," the motion added, stating that it "did not adequately consider less restrictive alternatives," and "sweeps in vast amounts of First Amendment-protected speech that pose no plausible threat to the administration of justice."
Trump’s team said the gag order was "incurably vague," taking issue with the word "target" as an example of this vagueness. This word was one of the same issues that caused the American Civil Liberties Union to file a lawsuit on the side of Trump.
"The Court should stay the Gag Order pending appeal. In addition, President Trump respectfully requests that the Court enter a temporary administrative stay pending resolution of this motion and issue its ruling by November 10, 2023. If the Court denies this motion, President Trump requests that the Court extend its administrative stay for seven days to allow him to seek relief from the U.S. Supreme Court," the motion concludes.
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