The denial of rehearing by the full Circuit court was expected. Trump may now seek Supreme Court review, which is unlikely.
On Tuesday, the D.C. Circuit Court of Appeals rebuffed former president Trump’s request that it reconsider en banc (i.e., conduct a review by all eleven Circuit judges) the decision by a three-judge Circuit panel that narrowed, but otherwise left in place, a gag order imposed by district judge Tanya Chutkan.
Judge Chutkan is presiding over the federal election-interference case brought against Trump by Biden Justice Department special counsel Jack Smith. Proceedings in the district court are currently on hold while the D.C. Circuit considers Trump’s appeal of Chutkan’s denial of his immunity claim.
Defendants under indictment and pending trial are normally restricted in what they are permitted to say about the case. That is, the tension between First Amendment free speech and the administration of justice in criminal cases is resolved by curbing speech that could influence the jury pool, intimidate witnesses, or discourage the government from liberal compliance with discovery rules.
Most of the time, this is not much of an issue. In the Trump prosecutions, however, it is a major issue: He is running for president, as he is constitutionally entitled to do, and therefore limitations on his speech infringe on electoral politics — especially political speech, which is the core First Amendment protection. The issue is acute here because one of Trump’s signal campaign themes is that his rival in the increasingly likely 2024 election rematch, incumbent President Joe Biden, is using the executive branch’s police power to nullify Trump’s candidacy. Trump’s main target in that regard is the prosecutor, Smith, whom he has described as “deranged” and called a “thug.”
Judge Chutkan’s original order, issued in October, barred Trump from verbally attacking witnesses, prosecutors, and court staff (other than the judge herself). Last month, the three-judge Circuit panel ruled that these restrictions were too broad. It modified the order so that Trump is now allowed to resume the rhetoric against Smith, and to speak critically about potential witnesses in the case, such as former vice president Mike Pence (who rejected then-president Trump’s insistence that, at the joint session of Congress to ratify the result of the 2020 election, the vice president had legal authority to invalidate electoral votes certified for Biden by states where he’d won the popular vote).
Despite these concessions, Trump moved for rehearing en banc, essentially contending that any restrictions on his speech under the guise of administering justice in what he regards as a sham, politicized prosecution are unconstitutional. As Rich Lowry and I have discussed in recent podcast episodes, motions for rehearing by the full appellate court are rarely granted — the applicable rules do not even require the government to respond unless the court so directs, which is unusual. (Rich and I talked about the topic of rehearing en banc in the context of Trump’s immunity claim.)
As expected, the full Circuit denied Trump’s application without further comment. The D.C. Circuit includes seven judges appointed by Democratic presidents and four appointed by Republican presidents. There were no dissents from the denial of rehearing.
Trump’s must now decide whether to accept the Circuit’s decision or petition the Supreme Court to hear the gag order case. I believe he will file a certiorari petition and that the justices will decline to take the case. That would leave in effect the three-judge panel’s modification of Judge Chutkan’s order.