United States v. Trump

• Court: U.S. Court of Appeals — District of Columbia Circuit
• Writing for the Court: Millett, Circuit Judge
• Citation: United States v. Trump, 88 F.4th 990 (D.C. Cir. 2023)
• Docket Number: 23-3190
• Decision Date: 08 December 2023
• Parties: UNITED STATES of America, Appellee v. Donald J. TRUMP, Appellant

88 F.4th 990

UNITED STATES of America, Appellee v. Donald J. TRUMP, Appellant

No. 23-3190

United States Court of Appeals, District of Columbia Circuit

Argued November 20, 2023

Reissued December 20, 2023

Decided December 8, 2023

Appeal from the United States District Court for the District of Columbia (No. 1:23-cr-00257-1)

D. John Sauer argued the cause for appellant. With him on the briefs were John F. Lauro, Emil Bove, William O. Scharf, and Michael E. Talent.

Brenna Bird, Attorney General, Office of the Attorney General for the State of Iowa, and Eric H. Wessan, Solicitor General, were on the brief for amici curiae Iowa, et al. in support of appellant.

Gene P. Hamilton and Judd E. Stone, II were on the brief for amicus curiae America First Legal Foundation in support of appellant.

Dennis Grossman was on the brief for amicus curiae Christian Family Coalition in support of appellant.

Cecil W. VanDevender, Assistant Special Counsel, U.S. Department of Justice, argued the cause for appellee. With him on the brief were J.P. Cooney, Deputy Special Counsel, Raymond N. Hulser, Counselor to the Special Counsel, James I. Pearce and John M. Pellettieri, Assistant Special Counsels, and Molly G. Gaston and Thomas P. Windom, Senior Assistant Special Counsels.

Before: Millett, Pillard, and Garcia, Circuit Judges.

Millett, Circuit Judge:

A federal grand jury indicted former President Donald J. Trump for conspiring to overturn the 2020 presidential election through unlawful means and for obstructing the election's certification. Soon thereafter, Mr. Trump posted multiple statements on his social media account attacking potential witnesses in the case, the judge, and the Special Counsel and his staff prosecuting the case. The district court subsequently issued an order restraining the parties and their counsel from making public statements that "target" the parties, counsel and their staffs, court personnel, and "any reasonably foreseeable witness or the substance of their testimony."

Mr. Trump appeals the district court's order. His appeal involves the confluence of two paramount constitutional interests: the freedom of speech guaranteed by the First Amendment and the federal courts' vital Article III duty to ensure the fair and orderly administration of justice in criminal cases. We agree with the district court that some aspects of Mr. Trump's public statements pose a significant and imminent threat to the fair and orderly adjudication of the ongoing criminal proceeding, warranting a speech-constraining protective order. The district court's order, however, sweeps in more protected speech than is necessary. For that reason, we affirm the district court's order in part and vacate it in part.

Specifically, the Order is affirmed to the extent it prohibits all parties and their counsel from making or directing others to make public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding. The Order is also affirmed to the extent it prohibits all parties and their counsel from making or directing others to make public statements about—(1) counsel in the case other than the Special Counsel, (2) members of the court's staff and counsel's staffs, or (3) the family members of any counsel or staff member—if those statements are made with the intent to materially interfere with, or to cause others to materially interfere with, counsel's or staff's work in this criminal case, or with the knowledge that such interference is highly likely to result. We vacate the Order to the extent it covers speech beyond those specified categories. See 28 U.S.C. § 2106.

I

A

On August 1, 2023, a federal grand jury in Washington, D.C., indicted former President Donald J. Trump on four felony counts of conspiring to overturn the 2020 presidential election. See Indictment ¶¶ 1-4, 127-128. Specifically, the indictment alleges that then-President Trump and his co-conspirators "used knowingly false claims of election fraud to get state legislators and election officials to subvert the legitimate election results[,]" "attempted to use the power and authority of the Justice Department to conduct sham election crime investigations[,]" and "attempted to enlist the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results." Indictment ¶ 10.

The conduct charged in the indictment arises out of then-President Trump's refusal to concede his loss in the 2020 presidential election. Indictment ¶¶ 1-2. He claimed that there had been outcome-determinative fraud and that he had actually won. Indictment ¶ 2; see also President Donald J. Trump, Statement on 2020 Election Results at 0:34-0:46, 18:11-18:15, C-SPAN (Dec. 2, 2020) (claiming that the election was "rigged" and characterized by "tremendous voter fraud and irregularities").¹

According to the indictment, then-President Trump waged a campaign to remain in power by publicly and privately pressuring state and local officials to overturn the 2020 election results, even though he lacked any proof of relevant irregularities, voter fraud, or vote rigging. Indictment ¶ 10; see, e.g., Donald J. Trump for President, Inc. v. Secretary of Pennsylvania, 830 F. App'x 377, 381 (3d Cir. 2020) ("[C]alling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.").

During the alleged efforts to overturn the 2020 election results, the then-President lambasted several state and local officials, often naming and blaming specific individuals on social media for not supporting his claims of election fraud. Special Counsel Mot. to Ensure that Extrajudicial Statements Do Not Prejudice These Proceedings 2-5, ECF 57 (Sept. 15, 2023) ("Special Counsel Mot."); see Indictment ¶¶ 28, 32. Mr. Trump's statements subjected those persons to threats and abuse from his supporters. Special Counsel Mot. 3-5. One official explained: "After the President tweeted at me by name, calling me out the way that he did, the threats became much more specific, much more graphic, and included not just me by name but included members of my family by name, their ages, our address, pictures of our home. Just every bit of detail that you could imagine. That was what changed with that tweet." Special Counsel Mot. 3; Indictment ¶ 42. Another official explained that he needed additional police protection and avoided "commenting on most things publicly" because it was "the safest thing to do" after then-President Trump tweeted about him. Special Counsel Mot. 3 & Ex. 1 at 42. And after then-President Trump criticized a governmental office for certifying the election, a member of that office had to evacuate his home when one of the then-President's supporters posted the official's address online. Special Counsel Mot. 3 & Ex. 1 at 3-4, 11.

In addition, then-President Trump is alleged to have publicly criticized and shortly thereafter fired the Director of the Department of Homeland Security's Cybersecurity and Infrastructure Security Agency for making statements reassuring the public about the 2020 presidential election's security. Indictment ¶ 11; Special Counsel Mot. 4. Two weeks later, a lawyer then working for Mr. Trump publicly stated that the director "should be drawn and quartered. Taken out at dawn and shot." Special Counsel Mot. 4; Ben Fox, Cybersecurity Official Fired by Trump Sues Over Threats, ASSOCIATED PRESS (Dec. 8, 2020). That statement prompted a wave of death threats against the former official and his family that forced them to evacuate their home until the danger abated. Special Counsel Mot. 4.

The then-President and his campaign also allegedly singled out private individuals. Indictment ¶¶ 21, 31; see id. ¶¶ 26, 29. A Georgia election worker, for example, testified before a congressional committee that she and her family were bombarded with violent and racist threats after the then-President, falsely and without any evidentiary basis, accused her of election misconduct. Select Committee Tr. at 7:22-8:3, 26:24-27:2 (May 31, 2022); Indictment ¶ 31. She testified:

Do you know how it feels to have the President of the United States to target you? The President of the United States is supposed to represent every American, not to target one. But he targeted me, * * * a small-business owner, a mother, a proud American citizen who stood up to help Fulton County run an election in the middle of the pandemic. * * * [W]hen someone as powerful as the President of the United States eggs on a mob, that mob will come.

Special Counsel Mot. 4-5; see Select Committee Tr. at 8:8-20.

B

At a hearing shortly after the indictment, the district court told the parties that it was "committed to ensuring that this case proceeds in the normal course that our criminal justice system prescribes." Hr'g Tr. 71:3-5, ECF 29 (Aug. 11, 2023). The district court emphasized that it "intend[ed] to ensure that Mr. Trump is afforded all the rights that any citizen would have," but then cautioned the parties that it would "prevent what the Supreme Court called in Sheppard v. Maxwell[, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966),] a 'carnival atmosphere' of unchecked publicity and trial by media rather than our constitutionally established system of trial by impartial jury." Id. 71:11-16. To that end, the district court told both parties "to take special care in [their] public statements about this case[,]" adding that it would "take whatever measures are necessary to safeguard the integrity of these proceedings." Id. 72:16-19.

Before and after the district court's warning, Mr. Trump repeatedly used his public platform to denigrate and attack those involved in the criminal case against him. The day after his initial court appearance, Mr. Trump posted on his social media account: "IF YOU GO AFTER ME, I'M COMING AFTER YOU!" Special Counsel Mot. 6. He then shared with his over six million...