The federal judge overseeing Donald Trump’s 2020 election interference case in Washington has reimposed a narrow gag order barring him from making public comments targeting prosecutors, court staff and potential witnesses.
Key points:
- Judge Tanya Chutkan agreed to reinstate a gag order on Mr Trump after prosecutors cited his recent social media comments
- Mr Trump was last week fined $US10,000 for breaching a gag order relating to his New York civil fraud trial
- Separate lawsuits seeking to bar Mr Trump from 2024 ballots due to the January 6 riot begin hearings in two states this week
The reinstatement of the gag order was revealed in a brief notation on the online case docket on Sunday night (US time), but the order itself was not immediately available, making it impossible to see the judge’s rationale or the precise contours of the restrictions.
US District Judge Tanya Chutkan, who is presiding over the federal case charging Mr Trump with plotting to overturn the results of the 2020 election, had temporarily lifted the gag order as she considered the former president’s request to keep it on hold while he challenges the restrictions on his speech in higher courts.
But Ms Chutkan agreed to reinstate the order after prosecutors cited Mr Trump’s recent social media comments about his former chief of staff, which they said represented an attempt to influence and intimidate a likely witness in the case.
Two separate judges have now imposed orders mandating that he rein in his speech, with the judge presiding over a civil fraud trial in New York last week fining him $US10,000 ($15,718).
The Associated Press sent a request for comment to a Trump attorney, Todd Blanche, on Sunday.
Mr Trump in a social media post late Sunday acknowledged that the gag order was back in place, calling it “NOT CONSTITUTIONAL!”
Mr Trump’s lawyers have said they will seek an emergency stay of the order from the US Circuit Court of Appeals for the Washington DC Circuit. The defence has said Mr Trump is entitled to criticise prosecutors and “speak truth to oppression”.
Mr Trump has denied any wrongdoing in the case. He has made vilifying special counsel Jack Smith and others involved in the criminal cases against him a central part of his 2024 campaign for president, casting himself as the victim of a politicised justice system.
Prosecutors have said Mr Trump’s verbal attacks threaten to undermine the integrity of the case, and risk inspiring his supporters to violence.
Mr Smith’s team said Mr Trump took advantage of the recent lifting of the gag order to “send an unmistakable and threatening message” to his former chief of staff, Mark Meadows, who was reported by US outlet ABC News to have received immunity to testify before a grand jury.
The former president mused on social media about the possibility that Mr Meadows would give testimony to Mr Smith in exchange for immunity. One part of the post said: “Some people would make that deal, but they are weaklings and cowards, and so bad for the future our Failing Nation. I don’t think that Mark Meadows is one of them but who really knows?”
Court arguments begin in efforts to bar Trump from 2024 ballot
The campaign to use the US constitution’s “insurrection” clause to bar former president Donald Trump from running for the White House will enter a new phase this week, as hearings begin in two states on lawsuits that may end up reaching the US Supreme Court.
A week-long hearing on one lawsuit to bar Mr Trump from the ballot in Colorado begins on Monday, while on Thursday oral arguments are scheduled before the Minnesota Supreme Court on an effort to kick the former president off the ballot in that state.
Whether the judges keep Mr Trump on the ballot or boot him, their rulings are likely to be swiftly appealed, eventually to the US Supreme Court. The nation’s highest court has never ruled on the Civil War-era provision in the 14th Amendment that prohibits those who swore an oath to uphold the constitution and then “engaged in insurrection” against it from holding higher office.
“We’ve had hearings with presidential candidates debating their eligibility before — Barack Obama, Ted Cruz, John McCain,” said Derek T Muller, a Notre Dame law professor, listing candidates challenged on whether they met the constitutional requirement of being a “natural born citizen”.
But these cases, Professor Muller added, are different, being that they rely on an obscure clause of the constitution with the “incendiary” bar against insurrection.
Even if they’re long shots, Professor Muller said, they have a plausible legal path to success and raise important issues.
“Those legal questions are very heavy ones,” he said.
Dozens of cases citing section three of the 14th Amendment have been filed in recent months, but the ones in Colorado and Minnesota seem the most important, according to legal experts.
That’s because they were filed by two liberal groups with significant legal resources. They also targeted states with a clear, swift process for challenges to candidates’ ballot qualifications.
It means the Colorado and Minnesota cases are taking a more legally sound route to get courts to force election officials to disqualify Mr Trump, as opposed to other lawsuits that seek a sweeping ruling from federal judges that Mr Trump is no longer eligible for the presidency.
The plaintiffs in the cases argue the issue is simple: Mr Trump’s efforts to overturn his 2020 election loss, leading to the January 6, 2021 attack on the US Capitol, mean he’s disqualified from the presidency just as clearly as if he were not a natural-born citizen, another constitutional prerequisite for the office.
“Four years after taking an oath to ‘preserve, protect and defend’ the Constitution as President of the United States … Trump tried to overthrow the results of the 2020 election, leading to a violent insurrection at the United States Capitol to stop the lawful transfer of power to his successor,” alleges the Colorado lawsuit, filed on behalf of Republican and unaffiliated voters by the liberal group Citizens for Responsibility and Ethics in Washington (CREW).
“By instigating this unprecedented assault on the American constitutional order, Trump violated his oath and disqualified himself under the Fourteenth Amendment from holding public office, including the Office of the President.”
Mr Trump has castigated the lawsuits as “election interference”. His lawyers contend that none of the issues are simple in a provision of the constitution that hasn’t been used in 150 years.
The clause has only been used a handful of times since immediately after the Civil War. Mr Trump’s lawyers contend that it was never meant to apply to the office of president, which is not mentioned in the text, unlike “Senator or Representative in Congress” and “elector of President and Vice President”.
The provision allows Congress to grant amnesty — as was done in 1872 to allow former confederates back into government — which has led some to argue that it has no power without an enabling act of Congress.
Finally, Mr Trump’s lawyers contend the former president never “engaged in insurrection”, and was simply exercising his free speech rights to warn about election results he did not believe were legitimate.
“Trump’s comments did not come close to ‘incitement’, let alone ‘engagement’ in an insurrection,” his attorneys wrote in a filing in the Colorado case.
They cited examples of cases where the congressional authors of section three declined to use it against people who only rhetorically backed the confederacy.
The arguments in Colorado could feature testimony from witnesses to the January 6 attack or other important events during Mr Trump’s efforts to overturn the election. The identities of witnesses have been shielded until they take the stand, part of the court’s effort to limit the heated rhetoric and threats that have become an issue in Mr Trump’s criminal trials.
The lawyers are expected to delve deeply into the history of the drafting of the provision in the 14th Amendment and its use between its adoption in 1868 and the amnesty law in 1872.
There is scant legal precedent on the issue — so little that the attorneys have had to argue about the meaning of an 1869 case written by Salmon Chase, who was then chief justice of the US Supreme Court, but wrote only as an appeals judge.
After the amnesty act in 1872, legal scholars could only find one other time the provision was cited — when Congress refused to seat a socialist member of the House of Representatives because he opposed entry into World Wat I.
Then, last year, it was used by CREW to bar the head of “Cowboys for Trump” from a county commission seat in rural New Mexico. A second liberal group, Free Speech For People, filed lawsuits seeking to prevent Republican representatives Marjorie Taylor-Greene and Madison Cawthorn from running for re-election.
The judge overseeing Ms Greene’s case ruled in her favour, while Mr Cawthorn’s case became moot after he was defeated in his primary. Free Speech For People filed the case in Minnesota, where challenges to ballot appearances go straight to the state’s supreme court.
AP