States File Brief Opposing Trump’s Gag Order: ‘Our Citizens Have An Interest’

A group of 18 Republican state attorneys general argued Tuesday night that former President Donald Trump’s gag order undermines their citizen’s interest in “hearing from major political candidates” in the coming 2024 election.

The states, led by Iowa Attorney General Brenna Bird and West Virginia Attorney General Patrick Morrisey, filed a friend-of-the-court brief with the Court of Appeals for the District of Columbia backing Trump’s appeal of the gag order in his 2020 election case. District Judge Tanya Chutkan “overstepped” her role when she imposed the order, the states argue.

“As administrators of free and fair elections, we have an interest in ensuring no illegal prior restraint is entered against any major political candidate,” the states wrote. “Indeed, our citizens have an interest in hearing from major political candidates in that election. The Order threatens the States’ interests by infringing on President Trump’s free speech rights.”

Chutkan’s order restricts Trump from making public statements targeting Special Counsel Jack Smith or his staff, the defense counsel or their staff, court staff and “any reasonably foreseeable witness or the substance of their testimony” in the case. A carve-out included by Chutkan clarifies that the order “shall not be construed to prohibit Defendant from making statements criticizing the government generally.”

“The judge’s approach for the gag order ignores the fact that the government’s case is political to the core—it’s obvious the other side is stopping at nothing to silence Biden’s political opponent,” Morrisey said in a statement. He noted that even the American Civil Liberties Union (ACLU) — “an organization on the opposite side of the GOP’s political spectrum” — sided with the former president in opposing the order as a threat to free speech.

“[W]hen political foes join in a common defense, you know there’s something there,” he said.

The appeals court temporarily stayed the order Nov. 3 following Trump’s appeal. A three-judge panel will consider his appeal during oral arguments Nov. 20.

Trump argued in his appeal brief that Chutkan’s decision to impose the order violates both his First Amendment rights and the rights of “tens of millions of Americans to engage in and hear core political speech in the middle of an ongoing Presidential campaign.”

Special Counsel Jack Smith’s office responded Tuesday in a brief that argued Trump does not have “an unfettered right to try his case in the media.”

The states that joined Iowa and West Virginia include Alabama, Alaska, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas and Utah.

Katelynn Richardson on November 15, 2023

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