After a three-judge appeals court panel in Washington reinstated Donald Trump’s gag order earlier this month, he now wants the full U.S. Court of Appeals for the District of Columbia Circuit to weigh in. Trump will have a tough time getting the panel’s ruling overturned there, though he may be setting up for an appeal to the Supreme Court, where the outcome would be less certain.
There are two related reasons that make it harder for Trump to succeed on appeal. First, the 68-page panel ruling issued Dec. 8 was carefully reasoned. The panel didn’t simply rubber-stamp U.S. District Judge Tanya Chutkan’s initial order but instead narrowed it, including by eliminating her ban on statements against special counsel Jack Smith himself. The second reason is that Trump’s extreme legal position didn’t leave much room for the panel to work with. Indeed, the appellate court observed that the former president’s approach “gives no inch to the need to protect the criminal justice process.”
There are two related reasons that make it harder for Trump to succeed on appeal.
Of course, anything can happen, especially if the Supreme Court eventually takes the appeal and a majority of the justices believe the D.C. Circuit applied too strict a standard against Trump as he runs for president again in 2024. But remember, even if either side asks for Supreme Court review, the justices have discretion over whether to take the case at all. Though if the high court does get involved, it’s worth remembering that, in rejecting Trump’s position, the D.C. Circuit reasoned that he “miscasts Supreme Court precedent.”
Trump also recently lost his latest effort to upend his New York gag order in his civil fraud case, where closing arguments are set for Jan. 11.
No matter what happens with this Washington gag order appeal, it shouldn’t further delay the election interference trial that’s currently scheduled for March. The main thing holding that up for now is Trump’s immunity appeal, which is pending on a fast track in the D.C. Circuit while Smith tries to get the Supreme Court to step in early and decide it. As with the gag order and much else, the justices may have the last word. Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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