How to Challenge a Gag Order: A Constitutional Analysis (2023)

In a high-stakes hearing before the US DC Circuit Court of Appeals, former President Donald Trump will argue against a gag order placed on him in his federal election subversion criminal case. This hearing represents Trump's latest attempt to undo the gag order issued by District Judge Tanya Chutkan, which restricts his ability to publicly target court personnel, potential witnesses, special counsel Jack Smith, and his staff.

The gag order has temporarily been frozen by the appeals court as Trump continues to contest it. Trump's attorneys argue that the gag order violates his fundamental First Amendment rights and fails to consider the First Amendment rights of the American public to receive and listen to his speech . However, legal experts, such as Catherine Ross, a professor at the George Washington University Law School, have cast doubt on Trump's argument, stating that limitations on First Amendment rights may be necessary to ensure the integrity of the judicial process and guarantee a fair trial.

The Constitutional Challenge

Trump's attorneys have mounted a constitutional challenge to the gag order, claiming that it violates several of his rights, including those guaranteed under the First Amendment. They argue that the restrictions on Trump's speech impede his ability to engage in core political speech during an ongoing presidential campaign .

The panel of judges at the DC Circuit Court of Appeals will consider whether the gag order is "unconstitutionally vague" and lacks clear and precise language needed to pass legal scrutiny Trump's legal team asserts that the entire gag order is based on an unconstitutional "heckler's veto" theory and is overbroad in its entirety.

Prosecutors' Arguments

Prosecutors, on the other hand, argue that Trump's attacks on individuals close to the case justify the restrictions on his speech. They contend that allowing Trump to malign the prosecutor, his family, and specific witnesses would be unprecedented in a criminal case and could undermine the administration of justice .

They point out that the gag order is necessary to prevent Trump from trying his case in the media, targeting specific witnesses with attacks on their character and credibility, and potentially endangering individuals involved in the case Prosecutors highlight that Trump has recently resumed targeting the Special Counsel's family, further justifying the need for the gag order.

The Role of the DC Circuit Court

The DC Circuit Court of Appeals has considered numerous Trump-related cases in the past, and the three-judge panel randomly selected to handle the gag order appeal includes two judges who have previously ruled against Trump: Circuit Judges Patricia Millett and Cornelia Pillard, both appointed by former President Barack Obama The third judge on the panel, Circuit Judge Brad Garcia, an appointee of President Joe Biden, has yet to hear a Trump-related case.

Both sides in the case will have the option to appeal the court's decision to a panel comprised of all the judges on the DC Circuit or directly to the Supreme Court .


The hearing before the US DC Circuit Court of Appeals represents a crucial moment in Donald Trump's legal battle against the gag order placed on him in his federal election subversion criminal case. Trump's attorneys argue that the gag order violates his First Amendment rights, while prosecutors contend that it is necessary to protect the integrity of the judicial process and ensure a fair trial. The panel of judges will ultimately decide the fate of the gag order and its constitutionality.


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