United States v. Donald Trump

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 20, 2023 Decided December 8, 2023

No. 23-3190

UNITED STATES OF AMERICA,

APPELLEE

v.

DONALD J. TRUMP,

APPELLANT

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.

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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.

Opinion for the Court filed by Circuit Judge MILLETT.

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

*

NOTE: Portions of this opinion contain sealed information, which

has been redacted.

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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.

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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

1

https://www.c-span.org/video/?506975-1/president-trump-stateme

nt-2020-election-results.

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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

. Special Counsel Mot. 3 . And after

then-President Trump criticized a governmental office for

certifying the election, a member of that office had to

when one of the then-President’s supporters posted

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the official’s address online. Special Counsel Mot. 3

.

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

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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

(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 social media followers on Truth Social his

view that the district court judge is a “fraud dressed up as a

judge[,]” “a radical Obama hack[,]” and a “biased, Trump-

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hating judge[.]” Special Counsel Mot. 8–9. He labeled the

prosecutors in the case “[d]eranged[,]” “[t]hugs[,]” and

“[l]unatics[.]” Special Counsel Mot. 8–9; Special Counsel

Reply in Support of Special Counsel Mot. 10, ECF 64 (Sept.

29, 2023) (“Special Counsel Mot. Reply”).

The day after Mr. Trump’s “IF YOU GO AFTER ME, I’M

COMING AFTER YOU!” post, one of his supporters called

the district court judge’s chambers and said: “Hey you stupid

slave n[****]r[.] * * * If Trump doesn’t get elected in 2024,

we are coming to kill you, so tread lightly b[***]h. * * * You

will be targeted personally, publicly, your family, all of it.”

Special Counsel Br. 5; see United States v. Shry, No. 4:23-cr-

413, ECF 1 at 3 (Criminal Complaint) (S.D. Tex. Aug. 11,

2023).

Mr. Trump also took aim at potential witnesses named in

the indictment, including former Vice President Michael

Pence, whom he accused of going to the “Dark Side[.]” Special

Counsel Mot. Reply 9; see Special Counsel Mot. 11 & n.20;

Special Counsel Mot. Reply 9 (discussing attacks on former

Attorney General Bill Barr).

C

Arguing that Mr. Trump’s statements were

“undermin[ing] the integrity of the[] proceedings” by

impacting “the impartiality of the jury pool while

simultaneously influencing witness testimony[,]” the Special

Counsel asked the district court for an order restraining Mr.

Trump’s public statements about the trial. Special Counsel

Mot. 1, 15. Specifically, the prosecution sought to prohibit (1)

“statements regarding the identity, testimony, or credibility of

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prospective witnesses”; and (2) “statements about any party,

witness, attorney, court personnel, or potential jurors that are

disparaging and inflammatory, or intimidating.” Special

Counsel Mot. 15. After full briefing and a hearing, the district

court granted in part and denied in part the Special Counsel’s

motion. Dist. Ct. Order at 1 (“Order”).

The district court first explained that an order restricting

Mr. Trump’s speech about the District of Columbia or its

residents was not necessary at that time to protect against

contaminating the jury pool. Hr’g Tr. 82:24–83:4. Instead, the

district court held that, on the record before it, any such taint

could be addressed through rigorous questioning of potential

jurors before empanelment. Id.

On the other hand, the court found that the former

President’s speech posed “a significant and immediate risk that

(1) witnesses will be intimidated or otherwise unduly

influenced by the prospect of being themselves targeted for

harassment or threats; and (2) attorneys, public servants, and

other court staff will themselves become targets for threats and

harassment.” Order at 2. Invoking both a local rule of criminal

procedure, see LCrR 57.7(c), and the court’s obligation to “take

such steps by rule and regulation that will protect [its]

processes from prejudicial outside interferences[,]” Order at 1

(quoting Sheppard, 384 U.S. at 363), the district court ordered:

All interested parties in this matter, including the parties

and their counsel, are prohibited from making any public

statements, or directing others to make any public

statements, that target (1) the Special Counsel prosecuting

this case or his staff; (2) defense counsel or their staff; (3)

any of this court’s staff or other supporting personnel; or

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(4) any reasonably foreseeable witness or the substance of

their testimony.

Order at 3.

The district court then added that the Order did not prohibit

“statements criticizing the government generally, including the

current administration or the Department of Justice; statements

asserting that Defendant is innocent of the charges against him,

or that his prosecution is politically motivated; or statements

criticizing the campaign platforms or policies of Defendant’s

current political rivals[.]” Order at 3. The district court’s Order

does not prohibit statements targeting the court or the judge

herself. See Order at 1–3.

D

The district court administratively stayed the Order while

it considered Mr. Trump’s motion for a stay pending appeal.

Minute Order of Oct. 20, 2023.

Soon thereafter, news broke asserting that Mark Meadows,

Mr. Trump’s former Chief of Staff, was cooperating with the

Special Counsel in exchange for immunity. See Katherine

Faulders, Mike Levine & Alexander Mallin, Ex-Chief of Staff

Mark Meadows Granted Immunity, Tells Special Counsel He

Warned Trump About 2020 Claims, ABC NEWS (Oct. 24, 2023,

6:11 PM).2 Hours later, Mr. Trump asked on social media

whether Meadows was the type of “weakling[] and coward[]”

who would “make up some really horrible ‘STUFF’” about Mr.

Trump in exchange for “IMMUNITY against Prosecution

2

https://perma.cc/VRG2-D6SZ.

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(PERSECUTION!) by Deranged Prosecutor, Jack Smith.”

Special Counsel Resp. in Opp’n to Mot. to Stay 9, ECF 120

(Oct. 25, 2023) (“Special Counsel Stay Opp’n”).

Five days later, the district court denied Mr. Trump’s

request for a stay pending appeal to this court. Order at 9, ECF

124 (Oct. 29, 2023). As part of that denial, the district court

further clarified that the Order’s reach should be read in light

of the court’s discussions with counsel during the motion

hearing that led to its issuance. Id. at 5–6.

E

Mr. Trump timely filed an emergency appeal, a motion for

a stay of the Order, and a request for an expedited appeal. See

Emergency Mot. For Stay Pending Appeal at 1–2 (Nov. 2,

2023). The next day, this court administratively stayed the

Order and, because of the approaching trial date, set a highly

expedited schedule for the merits appeal. See Per Curiam

Order (Nov. 3, 2023).

II

A

We begin with our jurisdiction to hear this interlocutory

appeal. Congress has generally limited the jurisdiction of

federal courts of appeals to “final decisions of the district

courts[.]” 28 U.S.C. § 1291. As a result, a party ordinarily may

appeal only after the district court has resolved all claims and

has entered a final judgment fully disposing of the case. Van

Cauwenberghe v. Biard, 486 U.S. 517, 521–522 (1988);

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Cincinnati Ins. Co. v. All Plumbing, Inc., 812 F.3d 153, 156

(D.C. Cir. 2016).

One exception to this rule is the collateral-order doctrine,

under which an interlocutory district court order may be

appealed if it “(1) conclusively determines the disputed

question, (2) resolves an important issue completely separate

from the merits of the action, and (3) is effectively

unreviewable on appeal from a final judgment.” Ameziane v.

Obama, 620 F.3d 1, 5 (D.C. Cir. 2010) (citing Will v. Hallock,

546 U.S. 345, 349 (2006)). In addition, in Mohawk Industries,

Inc. v. Carpenter, 558 U.S. 100 (2009), the Supreme Court

underscored that “the class of collaterally appealable orders

must remain ‘narrow and selective in its membership.’” Id. at

113 (quoting Will, 546 U.S. at 350). Jurisdiction exists only if

the type of order at issue categorically satisfies the doctrine’s

criteria. Id. at 107.

Orders restraining parties’ speech during the pendency of

a criminal case categorically satisfy those criteria.

First, such orders, by their nature, conclusively determine

whether parties may speak on specified matters pertaining to

the criminal trial.

Second, such orders determine an important issue separate

from the merits. A defendant’s ability to speak about his

criminal trial is an important issue given the First

Amendment’s broad protection of free speech and the public

interest in the transparency of criminal trials and open

discussion of the trial process. See Sheppard, 384 U.S. at 349–

350. “[T]he criminal justice system exists in a larger context

of a government ultimately of the people, who wish to be

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informed about happenings in the criminal justice system, and,

if sufficiently informed about those happenings, might wish to

make changes in the system.” Gentile v. State Bar of Nevada,

501 U.S. 1030, 1070 (1991).

In addition, speech restrictions in criminal trials arise from

the need to protect the trial process and its truth-finding

function; assessing their validity does not touch on a

defendant’s guilt or innocence or any merits issues in the

underlying case. See United States v. Brown, 218 F.3d 415,

420 (5th Cir. 2000); In re Rafferty, 864 F.2d 151, 154 (D.C.

Cir. 1988) (holding that an order restraining a civil plaintiff’s

ability to disclose information to third persons “is entirely

independent of the underlying wrongful discharge claim”).

Third, reviewing such orders after final judgment would

not redress or undo any unconstitutional prohibitions of speech

that occurred prior to or during trial. The damage to First

Amendment interests would be done. And an order regulating

speech prior to and during trial almost always will expire by its

own terms once final judgment is entered in the criminal case,

making any attempted appellate review at the end of the case

moot.

In addition, no alternative mechanism for review would

suffice. In theory, a party could breach the Order, be held in

contempt, and then appeal the contempt ruling. But the

Supreme Court has long held that requiring speakers to violate

the law before vindicating their right to free speech would

excessively chill protected speech. See, e.g., Virginia v. Hicks,

539 U.S. 113, 119 (2003) (“Many persons, rather than

undertake the considerable burden * * * of vindicating their

rights through case-by-case litigation, will choose simply to

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abstain from protected speech[.]”); cf. Susan B. Anthony List v.

Driehaus, 573 U.S. 149, 158–159 (2014) (“[I]t is not necessary

that petitioner first expose himself to actual arrest or

prosecution to be entitled to challenge a statute that he claims

deters the exercise of his constitutional rights[.]”) (quoting

Steffel v. Thompson, 415 U.S. 452, 459 (1974)).

For those reasons, we hold that we have jurisdiction under

the collateral-order doctrine. See In re Stone, 940 F.3d 1332,

1340 (D.C. Cir. 2019) (“[O]ur Circuit has long allowed

nonparties subject to a restrictive order to appeal that order

under the collateral order doctrine.”); Rafferty, 864 F.2d at

153–155 (order restraining a civil plaintiff’s ability to disclose

information to third persons is appealable under the collateral-

order doctrine); see also Brown, 218 F.3d at 420–422 (speech

restraint in criminal trial is appealable under the collateral-

order doctrine); United States v. Ford, 830 F.2d 596, 598 (6th

Cir. 1987) (same).3

B

Whether the Order violates the Constitution is a question

of law subject to de novo review. See United States v. Popa,

187 F.3d 672, 674 (D.C. Cir. 1999); United States v. Bronstein,

849 F.3d 1101, 1106 (D.C. Cir. 2017). We review the district

court’s factual findings for clear error and will overturn them

only if we are “left with the definite and firm conviction that a

mistake has been committed.” United States v. Miller, 35 F.4th

807, 817 (D.C. Cir. 2022) (quoting United States v. United

3

Because the Order is appealable under the collateral-order doctrine,

we need not address whether the Order is also an appealable

injunction under 28 U.S.C. § 1292(a)(1), or whether to treat this

appeal as a petition for writ of mandamus. See Trump Br. 4–6.

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States Gypsum Co., 333 U.S. 364, 395 (1948)). On our review,

this court can “affirm, modify, vacate, set aside or reverse” the

district court’s Order. 28 U.S.C. § 2106.

III

Two foundational constitutional values intersect in this

case: an individual’s right to free speech and the fair and

effective functioning of the criminal trial process and its truth-

finding function. Because of the constitutional stakes, orders

restricting a defendant’s speech must be drawn no more

broadly or narrowly than necessary to ensure the fair

administration of justice.

A

The Right to Free Speech

Freedom of speech is a bedrock constitutional right.

Americans are free to speak, listen to others, and make up their

own minds about their government and the world around them.

“The First Amendment reflects ‘a profound national

commitment to the principle that debate on public issues should

be uninhibited, robust, and wide-open.’” Snyder v. Phelps, 562

U.S. 443, 452 (2011) (quoting New York Times Co. v. Sullivan,

376 U.S. 254, 270 (1964)). “That is because ‘speech

concerning public affairs is more than self-expression; it is the

essence of self-government.’” Id. (quoting Garrison v.

Louisiana, 379 U.S. 64, 74–75 (1964)).

Political speech in particular is the lifeblood of American

democracy. It allows the free exchange of ideas among

individuals about governance and the political process. Mills

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v. Alabama, 384 U.S. 214, 218–219 (1966). “Whatever

differences may exist about interpretations of the First

Amendment, there is practically universal agreement that a

major purpose of that Amendment was to protect the free

discussion of governmental affairs.” Id. It also allows voters

to make informed decisions about those who seek to represent

them in government, including their character, qualifications,

and policy platforms. “In a republic where the people are

sovereign, the ability of the citizenry to make informed choices

among candidates for office is essential, for the identities of

those who are elected will inevitably shape the course that we

follow as a nation.” Buckley v. Valeo, 424 U.S. 1, 14–15

(1976).

For that reason, “the First Amendment ‘has its fullest and

most urgent application’ to speech uttered during a campaign

for political office.” Eu v. San Francisco County Democratic

Cent. Comm., 489 U.S. 214, 223 (1989) (quoting Monitor

Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)). “The candidate,

no less than any other person, has a First Amendment right to

engage in the discussion of public issues and vigorously and

tirelessly to advocate his own election and the election of other

candidates.” Brown v. Hartlage, 456 U.S. 45, 53 (1982)

(quoting Buckley, 424 U.S. at 52–53). That discussion is

critical to enabling “the electorate [to] intelligently evaluate the

candidates’ personal qualities and their positions on vital public

issues before choosing among them on election day.” Id.

Free speech also holds government officials accountable.

Public criticism and scrutiny of those in power exposes fraud,

curbs the abuse of power, and roots out corruption. As relevant

here, speech about judicial proceedings, especially criminal

prosecutions, promotes transparency in the legal system and

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“guards against the miscarriage of justice by subjecting the

police, prosecutors, and judicial processes to extensive public

scrutiny and criticism.” Sheppard, 384 U.S. at 350. “The

judicial system, and in particular our criminal justice courts,

play a vital part in a democratic state, and the public has a

legitimate interest in their operations.” Gentile, 501 U.S. at

1035.

“[T]o provide adequate ‘breathing space’” for robust

public debate and participation, the First Amendment generally

shields “insulting, and even outrageous, speech[.]” Snyder,

562 U.S. at 458 (quoting Boos v. Barry, 485 U.S. 312, 322

(1988)); cf. Virginia v. Black, 538 U.S. 343, 358 (2003). At the

same time, certain “historic and traditional categories” of

speech receive no First Amendment protection, such as

defamation, incitement, “[t]rue threats of violence,” and

obscenity. Counterman v. Colorado, 600 U.S. 66, 73–74

(2023) (quotation marks omitted).

In addition, even protected speech may, and sometimes

must, be regulated when necessary to protect a compelling

governmental interest, including the fair administration of a

criminal trial. See Sheppard, 384 U.S. at 362–363; Cox v.

Louisiana, 379 U.S. 559, 563–565 (1965) (sustaining

prohibition on picketing outside a courthouse, even though

such activity is “intertwined with expression and

association[,]” as necessary to protect trials from outside

influence).

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B

The Right to a Fair Trial

The Constitution affords Mr. Trump, like all criminal

defendants, the “fundamental right to a fair trial.” Strickland

v. Washington, 466 U.S. 668, 684 (1984). Foundational to our

constitutional system is the requirement that, before the

government may deprive a person of liberty, “impartial jurors,

who know as little as possible of the case,” must decide the

defendant’s guilt “based on material admitted into evidence

before them in a court proceeding.” Gentile, 501 U.S. at 1070;

see Irvin v. Dowd, 366 U.S. 717, 722 (1961). No one should

be punished for a crime without “a charge fairly made and

fairly tried in a public tribunal free of prejudice, passion,

excitement and tyrannical power.” Chambers v. Florida, 309

U.S. 227, 236–237 (1940).

Mr. Trump’s right to a fair trial does not give him “the

right to insist upon the opposite of that right”—that is, a trial

prejudiced in his favor. See Singer v. United States, 380 U.S.

24, 36 (1965). The public has its own compelling interest “in

fair trials designed to end in just judgments.” Wade v. Hunter,

336 U.S. 684, 689 (1949); see Gentile, 501 U.S. at 1075;

Brown, 218 F.3d at 600 n.1 (locating such interest in the

common law and Article II’s Take Care Clause).

Accordingly, courts must take steps to protect the integrity

of the criminal justice process, Sheppard, 384 U.S. at 363,

giving “[f]reedom of discussion * * * the widest range” that is

“compatible with the essential requirement of the fair and

orderly administration of justice.” Pennekamp v. Florida, 328

U.S. 331, 347 (1946). That standard requires courts to navigate

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a narrow path. The Constitution gives them very limited

authority to restrict the speech of the press and other outsiders

to the litigation. Their speech generally may be abridged only

if it presents a “clear and present danger to the administration

of justice.” Landmark Commc’ns, Inc. v. Virginia, 435 U.S.

829, 844 (1978); see Bridges v. California, 314 U.S. 252, 260–

263 (1941).

In fact, court orders restraining speech about an ongoing

criminal proceeding are presumptively unconstitutional.

Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 558 (1976). In

this context, prior restraints can be imposed only if narrowly

tailored to redress sufficiently serious threats to the criminal

justice process and if no less restrictive alternatives are

available. Even then, “there is nothing that proscribes the press

from reporting events that transpire in the courtroom.”

Sheppard, 384 U.S. at 362–363; see Craig v. Harney, 331 U.S.

367, 374 (1947) (“What transpires in the court room is public

property.”).

At the same time, when a case involves extensive media

coverage and public interest, or when the parties are trying the

case in the media rather than the courtroom, a court cannot sit

back and wait for a “carnival atmosphere” to descend before

acting. Sheppard, 384 U.S. at 356–363. Quite the opposite.

“[T]he primary constitutional duty of the Judicial Branch [is]

to do justice in criminal prosecutions[.]” United States v.

Nixon, 418 U.S. 683, 707 (1974). As part of that duty, courts

must “prevent the prejudice” to the trial process “at its

inception.” Sheppard, 384 U.S. at 363; see Nebraska Press,

427 U.S. at 553 (The cure for prejudice to the trial “lies in those

remedial measures that will prevent the prejudice at its

inception.”) (quoting Sheppard, 384 U.S. at 363). That is

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because waiting until the trial is over and reversing the

conviction would be an ineffective, costly, and wasteful

“palliative,” inflicting the additional burdens on a defendant

and extra expenses on the taxpayers of a retrial in an already

contaminated public atmosphere, with witness recall and

evidence growing staler all the while. Sheppard, 384 U.S. at

363; see Nebraska Press, 427 U.S. at 553.

As a result, courts have an ongoing obligation to ensure

that speech about a criminal case does not “divert the trial from

the ‘very purpose of a court system[,]’” which is “‘to adjudicate

controversies, both criminal and civil, in the calmness and

solemnity of the courtroom according to legal procedures.’”

Sheppard, 384 U.S. at 350–351 (quoting Cox, 379 U.S. at 583

(Black, J., dissenting)). Due process demands that “the

conclusions to be reached in a case will be induced only by

evidence and argument in open court, and not by any outside

influence, whether of private talk or public print.” Id. at 351

(quoting Patterson v. Colorado ex rel. Attorney General, 205

U.S. 454, 462 (1907)); see Geders v. United States, 425 U.S.

80, 86–87 (1976) (“If truth and fairness are not to be sacrificed,

the judge must exert substantial control over the

proceedings.”). The courts’ duty to protect trials from outside

influence includes protecting court personnel from both the

reality and the appearance of undue outside pressure. The

Supreme Court “has recognized that the unhindered and

untrammeled functioning of our courts is part of the very

foundation of our constitutional democracy.” Cox, 379 U.S. at

562 (citing Wood v. Georgia, 370 U.S. 375, 383 (1962))

(sustaining the constitutionality of a state ban on picketing

outside a courthouse “with the intent of influencing any judge,

juror, witness, or court officer”).

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While courts have quite limited authority to quiet the

speech of the press and public, the Constitution affords judges

broader authority to regulate the speech of trial participants.

See, e.g., Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32 n.18

(1984) (noting that “court[s] often find[] it necessary to restrict

the free expression of participants” to a trial) (emphasis added)

(quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, 104 n.21

(1981)). The Supreme Court has pointedly said that “[n]either

prosecutors, counsel for defense, the accused, witnesses, court

staff nor enforcement officers coming under the jurisdiction of

the court should be permitted to frustrate [the court’s]

function.” Sheppard, 384 U.S. at 363. Courts “must” be

proactive, id., and, when warranted, “proscribe[] extrajudicial

statements by any lawyer, party, witness, or court official”

engaging in “prejudicial” communications, id. at 361. See id.

at 359 (“[T]he court should have made some effort to control

the release of leads, information, and gossip to the press by

police officers, witnesses, and the counsel for both sides.”); see

also Seattle Times, 467 U.S. at 36–37 (holding that a court may

prohibit a newspaper that is party to a case from publishing

information obtained through the discovery process).

In Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991),

the Supreme Court discussed a state’s authority to regulate the

speech of participants in a criminal case. There, a lawyer

representing a criminal defendant in an ongoing criminal

proceeding held a press conference claiming that the

prosecutors were not “honest enough to indict the people who

did it,” and that the police were “crooked cops.” Id. at 1059.

The state bar initiated disciplinary proceedings against the

lawyer for violating a state bar rule prohibiting an attorney

from publicly making certain extrajudicial statements. Id. at

1033.

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The Supreme Court held that the First Amendment allows

a court to prohibit the speech of a trial participant when the

speech poses a “substantial likelihood of material prejudice” to

an adjudicative proceeding. Gentile, 501 U.S. at 1075. In so

ruling, the Court was explicit that the “stringent standard

applied in Nebraska Press” does not apply “to speech by a

lawyer whose client is a defendant in a criminal proceeding.”

Id. at 1065; see id. at 1072–1076. One aspect of the Court’s

reasoning focused on lawyers’ roles as “officers of the court,”

id. at 1074 (quoting Nebraska Press, 427 U.S. at 601 n.27), a

special status that “subjects them to fiduciary obligations to the

court and the parties[,]” id. at 1057.

But the Court also drew on the “distinction between

participants in the litigation and strangers to it[.]” Gentile, 501

U.S. at 1072–1073. The Court emphasized that it had, in prior

cases, “expressly contemplated that the speech of those

participating before the courts could be limited.” Id. at 1071–

1073 (citing Seattle Times, 467 U.S. at 32–33, 32 & n.18;

Sheppard, 384 U.S. at 363; Sacher v. United States, 343 U.S.

1, 8 (1952)). With this distinction in mind, the Court

emphasized that participation in a case gives lawyers a

distinctive public status and “special access to information

through discovery and client communications[.]” Id. at 1074.

Parties, too, have special access to information and accordingly

may be subject to speech restrictions not appropriate for

outsiders to the case.4

4

Gentile had two majority opinions. Four justices found that the

state bar rule was unconstitutionally vague and would have found

that the rule violated the First Amendment. Gentile, 501 U.S. at

1051–1058 (Kennedy, J.). Four other justices found that the bar rule

was not unconstitutionally vague and did not violate the First

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While Gentile involved regulating the speech of counsel

for a criminal defendant, the law has long recognized the

district court’s authority to control the speech and conduct even

of defendants in criminal trials when necessary to protect the

criminal justice process. See Nebraska Press, 427 U.S. at 553–

554 (exhorting courts to take “remedial measures that will

prevent * * * prejudice * * * [by] * * * the accused” and other

persons “coming under the jurisdiction of the court”);

Sheppard, 384 U.S. at 363 (similar).

In addition, after indictment, criminal defendants are

frequently subjected to “substantial liberty restrictions as a

result of the operation of our criminal justice system.” United

States v. Salerno, 481 U.S. 739, 749 (1987). More specifically,

as a less restrictive alternative to pre-trial detention, Congress

granted courts the authority to release indicted defendants

under the “least restrictive * * * condition, or combination of

conditions [of release], that * * * will reasonably assure the

appearance of the person as required and the safety of any other

person and the community[.]” 18 U.S.C. § 3142(c)(1)(B).

Such conditions commonly include measures that burden

criminal defendants’ ability to act, associate, and speak. See

id. § 3142(c)(1)(B)(i)–(xiv); see also GEORGE E. BROWNE &

SUZANNE M. STRONG, U.S. DEP’T OF JUST. BUREAU OF JUST.

STAT., PRETRIAL RELEASE AND MISCONDUCT IN FEDERAL

DISTRICT COURTS, FISCAL YEARS 2011–2018, at 7 table 5

Amendment. Id. at 1076, 1078 (Rehnquist, C.J.). Justice O’Connor

joined Chief Justice Rehnquist’s opinion holding that the rule

comported with the First Amendment, while agreeing with Justice

Kennedy that it was impermissibly vague. Id. at 1082–1083

(O’Connor, J., concurring).

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(2022);5 AMBER WIDGERY, NAT’L ASS’N OF STATE

LEGISLATURES, THE STATUTORY FRAMEWORK OF PRETRIAL

RELEASE 5 (2020) (describing “limitations on contact with

certain people, groups or places” and “adherence to or creation

of protection or no-contact orders” as common statutory

options for pretrial release conditions among States).6

As relevant here, Congress expressly authorized federal

courts to order a criminal defendant to “avoid all contact with

* * * a potential witness who may testify concerning the

offense.” 18 U.S.C. § 3142(c)(1)(B)(v); cf. United States v.

Perazza-Mercado, 553 F.3d 65, 70–71 (1st Cir. 2009)

(canvassing different circuits’ approach to internet restrictions

as a condition of supervised release and concluding such

restrictions may be imposed upon a showing of particular

need).

In this case, the district court prohibited Mr. Trump from

speaking to any witnesses to the case, except through or in the

presence of counsel. Order Setting Conditions of Release 3,

ECF 13 (Aug 3, 2023). Mr. Trump agrees that straightforward

prior restraint on his speech is “completely consistent with” the

First Amendment because of his status as an indicted

defendant. See Oral Arg. Tr. 31:13–32:1.

*****

To sum up, the Constitution requires robust protection of

speech about criminal trials and the government’s effort to

5

https://perma.cc/V6VH-Q3TV.

6

https://perma.cc/XHQ3-4UP7.

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deprive a defendant of liberty. At the same time, the

Constitution requires courts to ensure that outside speech and

influences do not derail or corrupt the criminal trial process.

On this record, the constitutional path for the presiding judge

to protect both free speech and the fair and orderly

administration of justice was not to limit what outsiders can say

about the trial or trial participants, but to appropriately delimit

what trial participants, including the accused, can say publicly

to other participants, witnesses, or outsiders.

IV

Given that constitutional backdrop, the Supreme Court’s

decisions in Nebraska Press and Gentile provide the starting

point for analyzing the district court’s authority to restrict a

criminal defendant’s communications about the pending case.

Nebraska Press and Gentile both require us to consider: (1)

whether the Order is justified by a sufficiently serious risk of

prejudice to an ongoing judicial proceeding; (2) whether less

restrictive alternatives would adequately address that risk; and

(3) whether the Order is narrowly tailored, including whether

the Order effectively addresses the potential prejudice. See

Nebraska Press, 427 U.S. at 562; Gentile, 501 U.S. at 1075–

1076.

We hold that the district court had the authority to restrain

those aspects of Mr. Trump’s speech that present a significant

and imminent risk to the fair and orderly administration of

justice, and that no less restrictive alternatives would

adequately address that risk. We also hold that the district

court’s Order was not narrowly tailored and modify its scope

to bring it within constitutional bounds.

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A

While the Supreme Court has repeatedly said that district

courts have the power, where necessary, to restrict the speech

of the accused, it has never directly reviewed an order limiting

the out-of-courtroom speech of a criminal defendant.

Like any other criminal defendant, Mr. Trump has a

constitutional right to speak. And his millions of supporters, as

well as his millions of detractors, have a right to hear what he

has to say. See Virginia State Bd. of Pharmacy v. Virginia

Citizens Consumer Council, Inc., 425 U.S. 748, 756–757

(1976).

Also like any other criminal defendant, Mr. Trump does

not have an unlimited right to speak. “Although litigants do

not surrender their First Amendment rights at the courthouse

door, those rights may be subordinated to other interests that

arise in [the trial] setting.” Seattle Times, 467 U.S. at 32 n.18

(formatting modified). In particular, the public has a

compelling interest in ensuring that the criminal proceeding

against Mr. Trump is not obstructed, hindered, or tainted, but

is fairly conducted and resolved according to the judgment of

an impartial jury based on only the evidence introduced in the

courtroom. See Gentile, 501 U.S. at 1075; Wade, 336 U.S. at

689.

The Supreme Court has instructed courts that when they

are imposing orders restricting speech about judicial

proceedings, they must in all cases consider both “the

imminence and magnitude of the danger” to the judicial

process that flows from the speech and “the need for free and

unfettered expression.” Landmark Commc’ns, 435 U.S. at 843;

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see id. at 842–843. Here, the relevant danger is the

“substantive evil of unfair administration of justice[,]”

Landmark Commc’ns, 435 U.S. at 844 (quoting Bridges, 314

U.S. at 271), and impairment of “the unhindered and

untrammeled functioning of our courts [that] is part of the very

foundation of our constitutional democracy[,]” Cox, 379 U.S.

at 562.

The parties vigorously contest what degree of danger to

the judicial process must exist for a district court to restrain a

criminal defendant’s speech. Trump Br. 26–29; Special

Counsel Br. 20–29.

In Gentile, the Supreme Court held that speech by a trial

participant—there, a defense attorney—could be restricted if it

posed a “substantial likelihood of material prejudice” to the

integrity of the proceedings. 501 U.S. at 1075. That bears

some resemblance to this case in that Mr. Trump is a participant

in the trial, not an outsider to it. But, as Mr. Trump fairly notes,

in adopting the “substantial likelihood of material prejudice”

standard in Gentile, the Supreme Court relied in part on

lawyers’ roles as officers of the court and the special duties that

lawyers owe to the court. See 501 U.S. at 1066–1068.

Criminal defendants, of course, have no similar

obligations. In addition, under our system of justice, a criminal

defendant—who is presumed to be innocent—may very well

have a greater constitutional claim than other trial participants

to criticize and speak out against the prosecution and the

criminal trial process that seek to take away his liberty.

Given those concerns, we assume without deciding that the

most demanding scrutiny applies to the district court’s speech-

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restricting Order, see Trump Op. Br. 31–34, 43–45, and that

only a significant and imminent threat to the administration of

criminal justice will support restricting Mr. Trump’s speech.

Mr. Trump disagrees and argues that the court may

proscribe his speech only if it poses a “clear and present

danger” to the trial process, Trump Br. 26–29, as laid out in

Landmark Communications, Inc. v. Virginia, 435 U.S. 829,

842–846 (1978), and Nebraska Press Association v. Stuart, 427

U.S. 539, 559–564 (1976). He offers no alternative test. Oral

Arg. Tr. 18:24–20:2. But his proposed rule gets constitutional

precedent wrong.

First, Mr. Trump’s approach gives no inch to the need to

protect the criminal justice process. He miscasts Supreme

Court precedent discussing “clear and present danger” as

preventing the district court from doing anything at all to curb

speech other than duplicate existing criminal prohibitions

against influencing witnesses, 18 U.S.C. § 1512(b), harassing

those assisting in a prosecution, id. § 1512(d)(4), and unlawful

threats, see, e.g., id. § 875; id. § 1503(a); D.C. Code § 22-407

(misdemeanor threats); id. § 22-1810 (felony threats); see also

Counterman, 600 U.S. at 74; Elonis v. United States, 575 U.S.

723, 726 (2015). Tellingly, Mr. Trump was unable to identify

any example of speech that could be protectively proscribed by

the district court that was not already a violation of the criminal

law, and so also of his release condition to comply with

applicable federal, state, and District laws. See Oral Arg. Tr.

21:3–19; Order Setting Conditions of Release 1.

The Supreme Court has been clear that the First

Amendment permits, and Article III and due process principles

require, courts to do more to protect the integrity of the criminal

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justice process than to shake their finger at a defendant and tell

him not to do what the law already forbids. See Sheppard, 384

U.S. at 362–363.

Second, Mr. Trump’s version of the clear-and-present-

danger test has no legal mooring. While the Supreme Court’s

“clear and present danger” language reflects the Constitution’s

great solicitude for free speech, the Supreme Court has said

explicitly that “clear and present danger” is not a proper

“formula for adjudicating cases.” Landmark Commc’ns, 435

U.S. at 842 (quoting Pennekamp, 328 U.S. at 353 (Frankfurter,

J., concurring)); see Gentile, 501 U.S. at 1036 (citing

Landmark Commc’ns, 435 U.S. at 842–843). Instead, the

Supreme Court has instructed that what “clear and present

danger” translates to in practice is that courts must analyze

whether any compelling interest justifies an appropriately

limited speech restriction. See Landmark Commc’ns, 435 U.S.

at 842–843. Yet Mr. Trump has refused to argue for any such

weighing, insisting that “clear and present danger” is the only

test that the court can apply and that it categorically prohibits

any speech-limiting order in this case. Oral Arg. Tr. 18:24–

20:2.

Finally, Mr. Trump’s proposed test fails to account for the

difference between trial participants and nonparticipants.

Neither Landmark Communications nor Nebraska Press

involved restrictions on trial participants’ speech. In fact, the

Supreme Court was at pains to point out in Landmark

Communications that the case did not involve “any

constitutional challenge to a State’s power * * * to punish

participants for breach of [the confidentiality] mandate[,]” 435

U.S. at 837 (emphasis added), and the Court explicitly noted

that limiting the statute at issue to trial participants “might well

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save the statute[,]” id. at 837 n.9. Instead, the “narrow and

limited question presented” in Landmark Communications was

“whether the First Amendment permits the criminal

punishment of third persons who are strangers to the inquiry

* * * for divulging or publishing truthful information

regarding” certain judicial proceedings. Id. at 837 (emphasis

added); see id. at 841 (“The question, however, is whether [the

State’s] interests are sufficient to justify the encroachment on

First Amendment guarantees * * * with respect to

nonparticipants such as Landmark.”) (emphasis added); see

also id. at 841 n.12.

Notably, every single Supreme Court case applying the

clear-and-present-danger standard to restrictions on speech

about judicial proceedings (1) was decided before the Supreme

Court ruled out “clear and present danger” as a “formula” for

courts to apply, Landmark Commc’ns, 435 U.S. at 842 (quoting

Pennekamp, 328 U.S. at 353 (Frankfurter, J., concurring)), and

(2) involved speech by outsiders to the litigation, see Nebraska

Press, 427 U.S. at 568–570 (publications and broadcasting by

the press and media); Wood, 370 U.S. at 376–379, 382, 389–

394 (press release by county sheriff speaking in his personal

capacity); Craig, 331 U.S. at 369, 376–377 (newspaper

editorial and news stories); Pennekamp, 328 U.S. at 336–339,

348–350 (newspaper editorials and cartoon); Bridges, 314 U.S.

at 271–273 (newspaper editorials); cf. Landmark Commc’ns,

435 U.S. at 837, 842–846.7

7

While the Sixth Circuit applied the clear-and-present-danger

standard to an order restraining a criminal defendant’s speech in

United States v. Ford, 830 F.2d 596, 598–602 (6th Cir. 1987), it did

so before Gentile and did not acknowledge Landmark

Communications’ direction against using the clear-and-present-

danger standard as a formula for resolving cases.

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B

The record before the district court and its factual findings

demonstrate that some of Mr. Trump’s speech poses a

significant and imminent threat to the fair and orderly

adjudication of the criminal proceeding against him.

1

The record shows that Mr. Trump has repeatedly attacked

those involved in this case through threatening public

statements, as well as messaging daggered at likely witnesses

and their testimony. For example, the day after his initial

appearance in court, Mr. Trump issued a warning: “IF YOU

GO AFTER ME, I’M COMING AFTER YOU!” Special

Counsel Mot. 6.

The former President has gone after known and potential

witnesses, and others closely involved in the 2020 election

events around which the indictment and criminal trial

center. In the days and weeks following the indictment, Mr.

Trump publicly accused former Vice President Pence of

“go[ing] to the Dark Side” and of “mak[ing] up stories about”

the events of January 6, 2020 (including in a post that also

referred to “these Fake Indictments”).8

Two weeks after his indictment and after “reading reports”

that the former Georgia Lieutenant Governor Jeff Duncan

would be testifying before a grand jury in Fulton County,

Georgia, Mr. Trump posted that Duncan “shouldn’t [testify]”

8

https://perma.cc/PMD6-BUDX; https://perma.cc/9VR2-HZGK;

Hr’g Tr. 55:16–22.

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and called Duncan a “fail[ure]” and a “loser” who “fought the

TRUTH all the way.”9

In addition, apparently in response to news reports that

former White House Chief of Staff Mark Meadows might be

cooperating with prosecutors, Mr. Trump posted:

I don’t think Mark Meadows would lie about the Rigged

and Stollen 2020 Presidential Election merely for getting

IMMUNITY against Prosecution (PERSECUTION!) by

Deranged Prosecutor, Jack Smith. BUT, when you really

think about it, after being hounded like a dog for three

years, told you’ll be going to jail for the rest of your life,

your money and your family will be forever gone, and

we’re not at all interested in exposing those that did the

RIGGING — If you say BAD THINGS about that terrible

“MONSTER,” DONALD J. TRUMP, we won’t put you in

prison, you can keep your family and your wealth, and,

perhaps, if you can make up some really horrible “STUFF”

about him, we may very well erect a statue of you in the

middle of our decaying and now very violent Capital,

Washington, D.C. Some people would make that deal, but

they are weaklings and cowards, and so bad for the future

[of] our Failing Nation. I don’t think that Mark Meadows

is one of them, but who really knows? MAKE AMERICA

GREAT AGAIN!!!10

The former President has also lashed out at government

officials closely involved in the criminal proceeding. He has

9

https://perma.cc/ZK9H-8SKS.

10

https://perma.cc/9DFD-A7QP.

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repeatedly labeled the trial judge as “biased,” a “fraud[,]” and

a “hack[,]” Special Counsel Mot. 6–7, and has called the

prosecutors “[d]eranged[,]” “thugs[,]” and “[l]unatics[,]”

Special Counsel Mot. 8–9; Special Counsel Reply 10. He

likewise has posted about the Special Counsel’s wife and spoke

publicly about her at a rally following our administrative stay

of the Order.11 See Special Counsel Br. 14 n.4.

The record also shows that former President Trump’s

words have real-world consequences. Many of those on the

receiving end of his attacks pertaining to the 2020 election have

been subjected to a torrent of threats and intimidation from his

supporters. A day after Mr. Trump’s “IF YOU GO AFTER

ME, I’M COMING AFTER YOU!” post, someone called the

district court and said: “Hey you stupid slave n[****]r[.] * * *

If Trump doesn’t get elected in 2024, we are coming to kill you,

so tread lightly b[***]h. * * * You will be targeted personally,

publicly, your family, all of it.” Special Counsel Br. 5; see

United States v. Shry, No. 4:23-cr-413, ECF 1 at 3 (Criminal

Complaint) (S.D. Tex. Aug. 11, 2023). The Special Counsel

also has advised that he has received threats, and that a

prosecutor in the Special Counsel’s office whom Mr. Trump

has singled out for criticism has been “subject to intimidating

communications.” Special Counsel Mot. 12.

The former President has repeatedly attacked both the

presiding judge and his law clerk in a New York state-law

lawsuit. Since those attacks, the judge’s chambers have been

“inundated with hundreds of harassing and threatening phone

calls, voicemails, emails, letters, and packages.” New York v.

Trump, No. 452564/2022, NYSCEF No. 1631 at 2 (N.Y. Sup.

11

https://perma.cc/F769-Z49A.

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Ct. Nov. 3, 2023). In addition to threatening death or serious

harm, callers have labeled the judge and clerk “Nazi[s],” “dirty

Jews,” and child molesters. See Trump v. Engoron, No. 2023-

05859, NYSCEF No. 9, Ex. E at 3–5 (N.Y. App. Div. Nov. 22,

2023).

Election officials involved in the 2020 election were

subjected to similar attacks. One election official explained:

“After the [then-]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. Another state official explained that

he avoided

. Special Counsel Mot. 3 . And a local

election official had to after then-President

Trump criticized his office and a supporter posted his address

online. Special Counsel Mot. 3 .

Likewise, after former President Trump publicly

condemned and then fired a federal official for making

statements reassuring the public about the 2020 election’s

security, one of Mr. Trump’s campaign’s lawyers publicly

stated that the official “should be drawn and quartered. Taken

out at dawn and shot.” Special Counsel Mot. 4. After receiving

death threats, the official and his family had to evacuate their

home. Id.

Others too have had their lives turned upside down after

coming within Mr. Trump’s verbal sights. For example, a

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temporary Georgia election worker testified before Congress

that she and her daughter endured “horrible, racist threats” after

then-President Trump falsely accused them of election

misconduct. Special Counsel Mot. 4–5; Select Committee Tr.

7:22–8:3, 26:24–27:2 (May 31, 2022). She testified that she

“had to move out of [her] house because the FBI said it wasn’t

safe.” Select Committee Tr. 8:1. People would send messages

“say[ing] things like, ‘We know where you live, and we’re

coming to get you, n[****]r.’” Select Committee Tr. 27:4–12.

Some would show up at her home to confront her, and one

person even tried to force her way into the election worker’s

mother’s home to effectuate a citizen’s arrest of the election

worker. Select Committee Tr. 28:2–29:12. The election

worker explained: “Do you know how it feels to have the

President of the United States to target you? * * * [W]hen

someone as powerful as the President of the United States eggs

on a mob, that mob will come.” Special Counsel Mot. 4.

Mr. Trump himself recognizes the power of his words and

their effect on his audience, agreeing that his supporters “listen

to [him] like no one else.” Transcript of CNN’s Town Hall

with Former President Donald Trump, CNN (May 11, 2023).12

Based on that record, the district court made a factual

finding that, “when Defendant has publicly attacked

individuals, including on matters related to this case, those

individuals are consequently threatened and harassed.” Order

at 2. Mr. Trump has not shown that factual finding to be clearly

erroneous, and we hold that the record amply supports it.

12

https://perma.cc/HC5Y-3XLT.

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2

Mr. Trump’s documented pattern of speech and its

demonstrated real-time, real-world consequences pose a

significant and imminent threat to the functioning of the

criminal trial process in this case in two respects.

First, Mr. Trump’s messages about known or reasonably

foreseeable witnesses that concern their potential participation

in the criminal proceeding pose a significant and imminent

threat to individuals’ willingness to participate fully and

candidly in the process, to the content of their testimony and

evidence, and to the trial’s essential truth-finding function.

The law has long recognized the importance of shielding

witnesses from external influences that undermine the integrity

of the trial process. In Sheppard, the Supreme Court

underscored the trial court’s obligation to “insulate[] the

witnesses” from external communications that could affect

their testimony. 384 U.S. at 359. Similarly, in Estes v. Texas,

381 U.S. 532 (1965), the Supreme Court overturned a criminal

conviction because broadcasting of the trial proceedings had

created a risk that “[t]he quality of the testimony” would “be

impaired” or that “witnesses [would be] reluctant to appear.”

Id. at 547. Courts also have authority to exclude witnesses

from the courtroom, instruct them not to discuss their testimony

with others, and even sequester them pending their

testimony—all to protect them and the evidence they offer

from external influences. See Geders, 425 U.S. at 87

(approving courts’ power to sequester witnesses so as to

“prevent[] improper attempts to influence the testimony in light

of the testimony already given”); Perry v. Leeke, 488 U.S. 272,

281 (1989) (discussing the “common practice” of “instruct[ing]

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a witness not to discuss his or her testimony with third parties

until the trial is completed” in order to “lessen the danger that

their testimony will be influenced” by others); FED. R. EVID.

615(a) (“At a party’s request, the court must order witnesses

excluded from the courtroom so that they cannot hear other

witnesses’ testimony. Or the court may do so on its own.”)

(emphasis added).

The concern with defendants’ influences on witnesses is

so significant that Congress has expressly authorized courts to

prevent defendants from communicating with witnesses. See

18 U.S.C. § 3142(c)(1)(B)(v); see generally Nixon, 418 U.S. at

709 (“[T]he public * * * has a right to every man’s

evidence[.]”) (quoting United States v. Bryan, 339 U.S. 323,

331 (1949)). That restraint is so commonplace that Mr. Trump

does not dispute the court’s authority to have ordered him, as a

condition of pretrial release, not to communicate with

witnesses except in the presence of counsel. See Oral Arg. Tr.

31:13–32:11.

There is no question that Mr. Trump could not have said

directly to Mark Meadows, former Vice President Pence, or

former Georgia Lieutenant Governor Duncan any of the

statements he posted on social media about their potential

discussions with the Special Counsel or grand-jury testimony,

and the consequences that would follow. Yet the district

court’s prohibition on Mr. Trump’s direct communications

with known witnesses would mean little if he can evade it by

making the same statements to a crowd, knowing or expecting

that a witness will get the message. Cf. Sheppard, 384 U.S. at

359 (restrictions on witnesses observing other witnesses’

testimony mean nothing if “the full verbatim testimony [is]

available to them in the press”); Estes, 381 U.S. at 547.

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Mr. Trump’s counsel conceded at oral argument that the

former President speaking about the case “with a megaphone,

knowing that [a] witness is in the audience” would likely

present the “same scenario” as Mr. Trump’s calling that

witness directly, in violation of his conditions of release. Oral

Arg. Tr. 33:12–17. So too if the defendant posts a message on

“social media knowing that [witness] is a social media follower

of his,” id. 33:20–23, or that the message will otherwise likely

reach the witness. In each of these scenarios, the defendant’s

speech about witness testimony or cooperation imperils the

availability, content, and integrity of witness testimony.

Accordingly, the district court had the authority to prevent

Mr. Trump from laundering communications concerning

witnesses and addressing their potential trial participation

through social media postings or other public comments.

In addition, common sense and “common human

experience,” Nebraska Press, 427 U.S. at 563, teach that

hostile messages regarding evidentiary cooperation that are

publicly relayed to high-profile witnesses have a significant

likelihood of deterring, chilling, or altering the involvement of

other witnesses in the case as well. The undertow generated by

such statements does not stop with the named individual. It is

also highly likely to influence other witnesses. Even witnesses

not yet publicly identified, who lack the special capacity or

resources to protect themselves or their families against the risk

of ensuing threats or harm, will be put in fear that, if they come

forward, they may well be the next target.

It is the court’s duty and authority to prevent speech by

trial participants, including the defendant, when the record

shows that their words have an “extraordinary power to

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undermine or destroy the efficacy of the criminal justice

system.” Gentile, 501 U.S. at 1075 (quotation marks omitted);

see Sheppard, 384 U.S. at 363. This is such a case.

Second, certain speech about counsel and staff working on

the case poses a significant and imminent risk of impeding the

adjudication of this case. Courts have a “legitimate interest in

protecting [the] judicial system from [outside] pressures,”

including protecting court officers from “conscious[] or

unconscious[ outside] influence[.]” See Cox, 379 U.S. at 562,

565. Messages designed to generate alarm and dread, and to

trigger extraordinary safety precautions, will necessarily hinder

the trial process and slow the administration of justice. For

example, trial personnel and participants will be distracted or

delayed by objectively reasonable concerns about their safety

and that of their family members, as well as by having to devote

time and resources to adopting safety measures or working

with investigators.

Given the record in this case, the court had a duty to act

proactively to prevent the creation of an atmosphere of fear or

intimidation aimed at preventing trial participants and staff

from performing their functions within the trial process. Just

as a court is duty-bound to prevent a trial from devolving into

a carnival, see Sheppard, 384 U.S. at 357–358, so too can it

prevent trial participants and staff from having to operate under

siege.

3

Mr. Trump raises three objections to any regulation of his

speech at all. None holds up.

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First, Mr. Trump argues that actual harm or obstruction to

witnesses or the judicial process and its participants must

already have occurred before his speech can be regulated.

Trump Br. 22; Trump Reply Br. 3. The Supreme Court has

said otherwise. Both Nebraska Press (which Mr. Trump

embraces) and Sheppard commanded trial courts that they

“must” prevent such harms at their “inception,” before they are

realized and dysfunction envelops the trial. Nebraska Press,

427 U.S. at 553–554; Sheppard, 384 U.S. at 362–363.

That makes sense. No one is entitled to one free bite at

derailing witness testimony or impeding the trial court’s ability

to function. A rule that courts are helpless to act until witnesses

have been intimidated, violence has been attempted, or a trial

participant has been materially hindered from doing her job

would “gravely impair the basic function of the courts” in the

“fair administration of criminal justice.” Nixon, 418 U.S. at

712–713.

Nor are the court’s hands tied until evidence of direct

causation materializes. Such proof would be hard to come by,

and requiring a court to conduct a mini-trial on that inquiry

while readying a high-profile case for trial would itself divert

and delay the criminal justice process. That presumably is why

the Supreme Court recognized in Nebraska Press that the trial

court’s assessment of the threat to the court’s functioning must

be “of necessity speculative, dealing * * * with factors

unknown and unknowable[,]” and may appropriately be

grounded both in record facts and “common human

experience.” 427 U.S. at 563.

Second, Mr. Trump objects that holding him responsible

for his listeners’ responses to his speech unconstitutionally

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imposes a “classic heckler’s veto,” “regardless of how

predictable * * * [Mr. Trump’s supporters’] unruly reactions

might be.” Trump Br. 37–38; see Trump Br. 36–39. Not so.

To start, that argument ignores the significant risk of harm

caused by Mr. Trump’s own messaging to known or potential

witnesses about their participation in the criminal justice

process and his menacing comments about trial participants

and staff.

The claim also misunderstands the heckler’s veto doctrine.

That doctrine prohibits restraining speech on the grounds that

it “might offend a hostile mob” hearing the message, Forsyth

County v. Nationalist Movement, 505 U.S. 123, 134–135

(1992) (emphasis added), or because its audience might

express “hostility to” the message, Cox, 379 U.S. at 551. The

harm the district court identified here was not that some

members of the public who oppose Mr. Trump’s message

might react violently and try to shut down his speech. Cf.

National Socialist Party of America v. Village of Skokie, 432

U.S. 43, 43–44 (1977). The concern was instead “how

predictable” it has become, Trump Br. 38, that some (but

certainly not all, or even many) of Mr. Trump’s followers will

act minaciously in response to his words.

Of course, the First Amendment generally does not allow

speech to be restricted because of some enthusiastic audience

members’ reactions. Outside of a judicial proceeding,

ordinarily only speech that rises to the level of incitement of

the audience can be banned. See Brandenburg v. Ohio, 395

U.S. 444, 448–449 (1969) (striking down law that failed to

distinguish “mere advocacy” from “incitement to imminent

lawless action”).

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But within a judicial proceeding, a trial court’s duty to

protect the functioning of the criminal trial process is not

cabined by the incitement doctrine. Sheppard holds that courts

may, and sometimes must, limit the speech of trial participants

to prevent the prejudice to the trial process caused by third

parties. Sheppard involved a criminal trial beset by suffocating

press coverage and publicity. 384 U.S. at 358. The press

regularly reported on evidence leaked to them by both sides,

even though such evidence was never offered into evidence in

court. Id. at 360–361. The Supreme Court held that, as a means

of addressing and averting harm to the criminal justice process,

the trial court should have “proscribed extrajudicial statements

by any lawyer, party, witness, or court official which divulged

prejudicial matters[.]” Id. at 361. Had the trial court done so,

“the news media would have soon learned to be content with

the task of reporting the case as it unfolded in the courtroom—

not pieced together from extrajudicial statements.” Id. at 362.

In other words, the Supreme Court explained that a

protective order restricting trial participants’ speech should

have been entered in Sheppard not only because the parties’

expression was itself obstructive, but even more so because

outsiders’ reactions and responses to that speech also

threatened the integrity of the trial process. At no point in

Sheppard did the Supreme Court even hint that evidence

demonstrating that the parties were already inciting interfering

press coverage would have been needed before the court could

act.

So too here. Many of former President Trump’s public

statements attacking witnesses, trial participants, and court

staff pose a danger to the integrity of these criminal

proceedings. That danger is magnified by the predictable

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torrent of threats of retribution and violence that the district

court found follows when Mr. Trump speaks out forcefully

against individuals in connection with this case and the 2020

election aftermath on which the indictment focuses. The

district court appropriately found that those threats and

harassment undermine the integrity of this criminal proceeding

by communicating directly or indirectly with witnesses and

potential witnesses about their testimony, evidence, and

cooperation in the justice process. They also impede the

administration of justice by exposing counsel and members of

the court’s and counsel’s staffs to fear and intimidating

pressure. The First Amendment does not afford trial

participants, including defendants, free rein to use their

knowledge or position within the trial as a tool for encumbering

the judicial process.13

Third, Mr. Trump asserts that, because he is running for

office, the trial is at issue in the campaign, meaning his

comments about the trial are political speech that cannot be

regulated without the strictest showing of necessity. Proactive

concerns about harm to the trial process, in his view, do not

suffice. See Trump Br. 31–34.14

13

Should Mr. Trump have reasonable concerns about the impartiality

or actions of court or prosecutorial staff, and their effect on the

integrity of the trial process, the better course is for his counsel to

voice those concerns in a motion filed with the court, where that

filing will be a matter of public record.

14

At oral argument, Mr. Trump stated that his position would be the

same even if there were no political campaign underway, as he would

still be engaged in political speech. Oral Arg. Tr. 5:14–6:20. Given

that position, we focus on the protection of political speech generally.

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The First Amendment unquestionably affords political

speech robust protection, and courts undoubtedly must tread

carefully when regulating such communications. See McIntyre

v. Ohio Elec. Comm’n, 514 U.S. 334, 347 (1995) (“No form of

speech is entitled to greater constitutional protection” than

“[c]ore political speech.”).

But there is another fundamental constitutional interest at

stake here. The existence of a political campaign or political

speech does not alter the court’s historical commitment or

obligation to ensure the fair administration of justice in

criminal cases. A trial participant’s engagement in political

speech cannot degrade or diminish that essential judicial

function. Mr. Trump acknowledges as much by accepting his

pretrial release condition that he cannot speak to witnesses in

the case about political matters or otherwise. He cannot evade

that legitimate limitation by dressing up messages to witnesses

in political-speech garb.

For the reasons outlined above, this record establishes the

imminence and magnitude, as well as the high likelihood, of

harm to the court’s core duty to ensure the fair and orderly

conduct of a criminal trial and its truth-finding function. That

significant and imminent threat to the core functioning of the

judicial branch reflected in this record constitutes a compelling

interest. See Nixon, 418 U.S. at 712–713; In re Murphy-Brown,

907 F.3d 788, 797 (4th Cir. 2018) (“Ensuring fair trial rights is

a compelling interest * * * when there is a ‘reasonable

likelihood’ that a party would be denied a fair trial without the

order under challenge.”) (quoting In re Russell, 726 F.2d 1007,

1010 (4th Cir. 1984)); see also Williams-Yulee v. Florida Bar,

575 U.S. 433, 446 (2015) (“[P]ublic perception of judicial

integrity is ‘a state interest of the highest order.’”) (quoting

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Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 889

(2009)). On the record before us, that compelling interest

establishes a sufficient predicate for the district court to have

imposed some limitation on trial participants’ speech. The

constitutional solicitude for political speech remains, though,

and requires that less restrictive alternatives not be viable and

that the scope of the order be narrowly tailored.

C

No less-speech-restrictive alternative could viably protect

against the imminent threat to the participation of witnesses,

trial participants, and staff in this criminal matter, or the full,

fair, and unobstructed receipt of relevant evidence. See

Nebraska Press, 427 U.S. at 563–565 (discussing “measures

short of an order restraining” speech); Gentile, 501 U.S. at

1075 (same).

We note that the district court tried a less restrictive

approach first. Shortly after the indictment, she cautioned the

parties and counsel against speech that would prejudice the trial

process and sought their voluntary compliance. Hr’g Tr. 72:7–

17, ECF 29 (Aug. 11, 2023) “[E]ven arguably ambiguous

statements from parties or their counsel, if they could

reasonably be interpreted to intimidate witnesses or to

prejudice potential jurors, can threaten the process. * * * I

caution all of you and your client, therefore, to take special care

in your public statements about this case.” Id. That warning

was not heeded, necessitating a more direct measure.

Self-regulation is just one possible alternative for a court

to consider before restraining speech. Nebraska Press

identified four others: questioning prospective jurors,

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instructing seated jurors to ignore extrajudicial statements,

moving the trial to a different location, and postponing the trial.

427 U.S. at 563–564. We agree with the district court that none

was a viable option to respond to the nature and character of

the harm posed in this case.

The district court carefully considered whether

questioning prospective jurors during voir dire or instructing

seated jurors to disregard information would suffice. The court

found that those measures would redress any taint from Mr.

Trump’s repeated criticisms of the District of Columbia and its

residents. See, e.g., Special Counsel Mot. 8 (Mr. Trump calling

the District of Columbia a “FILTHY AND CRIME RIDDEN

EMBARRASSMENT TO OUR NATION”). For that reason,

the court rejected the Special Counsel’s request that the district

court restrict speech “regarding the District of Columbia or its

jury pool.” Hr’g Tr. 83:2; see Hr’g Tr. 82:25–83:4 (“I am

confident that the voir dire process and cautionary jury

instructions can filter out those statements’ influence on the

jury.”).

Those measures, however, would do nothing to prevent or

redress the harm to witnesses’ participation or to staff

beleaguered by threats or harassment. If a witness’s testimony

were to change, or if a reluctant potential witness were to

decide not to come forward because of the former President’s

public statements, no amount of questioning or instructing

jurors could undo that harm. Likewise, if court and prosecution

staff are diverted from their work by the need to take extra

safety precautions to protect themselves and their families, or

are distracted by the burdens of constant vigilance, none of the

proposed measures regarding the jury would mitigate that

interference.

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Moving the trial to a different location would also be

ineffective. Mr. Trump’s rhetoric has national reach. See

Special Counsel Mot. Reply 9 (noting that Mr. Trump has more

than 6 million followers on the platform Truth Social).15 A

change of scene would not ameliorate the reasons for a

witness’s reluctance. And the staffs of court and the respective

litigation teams would be equally subject to interference,

regardless of locale.

Delaying the trial date until after the election, as Mr.

Trump proposes, would be counterproductive, create perverse

incentives, and unreasonably burden the judicial process.

Allowing prejudicial statements to go unchecked for an even

longer pre-trial period would simply compound the problem.

Delay would not bring back witnesses who have been stifled

by Mr. Trump’s commentary and the reactions of those whom

he says “listen to [him] like no one else.” See Transcript of

CNN’s Town Hall with Former President Donald Trump, CNN

(May 11, 2023).16 In addition, postponing trial would

incentivize criminal defendants to engage in harmful speech as

a means of delaying their prosecution. Mr. Trump has

repeatedly asked to push back the trial date in this case for two

additional years, and the district court has considered and

denied those requests. See, e.g., Def. Resp. Opp. Special

Counsel’s Proposed Trial Calendar 1–3, ECF 30 (Aug. 17,

2023) (proposing April 2026 trial date); Pretrial Order ¶ 1, ECF

39 (Aug. 28, 2023) (setting March 4, 2024 trial date); see also

Order at 3–4, ECF 82 (Oct. 6, 2023) (denying in part Mr.

Trump’s request for a 60-day deadline extension); Order at 1–

15

https://perma.cc/K3UM-SS92 (displaying 6.51 million followers).

16

https://perma.cc/HC5Y-3XLT.

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3, ECF 146 (Nov. 7, 2023) (denying in part Mr. Trump’s

request for a three-month deadline extension). A criminal

defendant cannot use significantly and imminently harmful

speech to override the district court’s control and management

of the trial schedule. Delays also “entail serious costs to the

[judicial] system,” Gentile, 501 U.S. at 1075, and frustrate the

public’s interest in the swift resolution of criminal charges.

Mr. Trump suggests that, as an alternative, the court

should follow the district court’s lead in United States v.

Brown, 218 F.3d 415 (5th Cir. 2000), and suspend the Order in

the months leading up to the election. See Trump Br. 32;

Trump Reply Br. 1, 16; Oral Arg. Tr. 23:25–24:3; 26:9–19.

That proposal is not remotely viable.

In Brown, the court of appeals held that a criminal

defendant’s speech could be restrained pending trial even

though the defendant was simultaneously running for

Louisiana Insurance Commissioner. 218 F.3d at 418–419,

428–432. The district court later chose to suspend its order for

the roughly seven weeks leading up to the general election to

facilitate Brown’s campaigning. Id. at 419. But no good deed

goes unpunished. Soon after the order was lifted, some of the

defendants released to the media telephone recordings relevant

to the case and conducted interviews about the recordings. Id.

That forced the district court to partially reimpose the gag

order. Id. At no point did the court of appeals address the

necessity of the district court’s decision to temporarily lift its

speech order.

In this case, the general election is almost a year away, and

will long postdate the trial in this case. See Pretrial Order ¶ 1

(Aug. 28, 2023), ECF 39. The district court also cannot

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feasibly suspend the Order for the weeks leading up to each of

the upcoming primary elections because contests for the

Republican nomination continue every month in 2024 from

January through June. See FED. ELECTIONS COMM’N, 2024

PRELIMINARY PRESIDENTIAL AND CONGRESSIONAL PRIMARY

DATES (2023).17 Suspending the Order for the leadup to each

of those primary elections would be the equivalent of no Order

at all. And no Order at all is not a less restrictive alternative.

V

A

While the district court had the authority to issue an order

restraining trial participants’ speech, and no less restrictive

alternative would suffice, the Order is not narrowly tailored to

maximize the amount of protected speech allowed while still

averting the “substantive evil of unfair administration of

justice[.]” Landmark Commc’ns, 435 U.S. at 844 (quoting

Bridges, 314 U.S. at 271); see Gentile, 501 U.S. at 1076.

In so holding, we fully credit the district court’s care and

efforts while handling this complex case to bring the Order

within First Amendment bounds. See, e.g., Hr’g Tr. 84:18–22

(stating that “Mr. Trump may still vigorously seek public

support as a presidential candidate, debate policies and people

related to that candidacy, criticize the current administration,

and assert his belief that this prosecution is politically

motivated”); Dist. Ct. Stay Order at 5 (explaining that the Order

covers only those “kinds of ‘targeting’ statements that could

result in ‘significant and immediate’ risks’ to ‘the integrity of

17

https://perma.cc/P5HK-7LAG.

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these proceedings’”) (quoting Order at 2). But in our view, the

Constitution requires some narrowing of the Order’s reach.

By way of reminder, the Order provides:

All interested parties in this matter, including the parties

and their counsel, are prohibited from making any public

statements, or directing others to make any public

statements, that target (1) the Special Counsel prosecuting

this case or his staff; (2) defense counsel or their staff; (3)

any of this court’s staff or other supporting personnel; or

(4) any reasonably foreseeable witness or the substance of

their testimony.

Order at 3. The Order then adds that it “shall not be construed”

to prohibit Mr. Trump from making statements that (1)

“criticiz[e] the government generally, including the current

administration or the Department of Justice”; (2) “assert[] that

Defendant is innocent of the charges against him, or that his

prosecution is politically motivated”; or (3) “criticiz[e] the

campaign platforms or policies of Defendant’s * * * political

rivals, such as former Vice President Pence.” Order at 3.

1

The district court’s ban on speech that “targets” witnesses

and trial personnel reaches too far. The ordinary meaning of

statements that “target” a person is statements aimed at or

directed toward a person or entity. See, e.g., OXFORD ENGLISH

DICTIONARY (2d ed. 1989) (def. 5) (“[t]o aim * * * at a target”);

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2341

(1993) (defs. 1a, 4) (“to make a target of” or “to direct toward

a target”).

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By broadly proscribing any statements about or directed to

the Special Counsel and the court’s and counsel’s staffs, as well

as reasonably foreseeable witnesses or their testimony, the

Order sweeps too broadly. It captures some constitutionally

protected speech that lacks the features or content that would

trench upon the court’s proper functioning or ability to

administer justice. Under the Order, Mr. Trump could not, for

example, say that a former government official and potential

witness is a “liar,” or that the Special Counsel is a “Trump

hater.” See Oral Arg. Tr. 114:25–116:22 (Special Counsel

arguing that the Order as drafted permits Mr. Trump to call

another’s statements untrue, but not to call the speaker a “liar”).

Nor could Mr. Trump express his opinion that the staff, in

general, at the courthouse has been “terrific” and “helpful,” or,

conversely, “hard to work with.”

Mr. Trump, it bears noting, is simultaneously a criminal

defendant and a political candidate for the Republican

presidential nomination. Under the court’s Order, his

opponents could without restriction wield the indictment and

evidence in the case to demonstrate his unfitness for office. Yet

the Order would allow Mr. Trump to respond only by

“asserting that [he] is innocent of the charges,” and then

changing the subject to his rival’s “campaign platform[] or

policies[.]” Order at 3. Permitting Mr. Trump to answer such

political attacks with only an anodyne “I beg to differ” would

unfairly skew the political debate while not materially

enhancing the court’s fundamental ability to conduct the trial.

In addition, the indictment against Mr. Trump refers to

statements or actions by the former Vice President, the former

Chairman of the Joint Chiefs of Staff, “other senior national

security advisors,” the former White House Chief of Staff,

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other senior White House officials, and multiple United States

Senators and Representatives. Indictment ¶¶ 83–120.

Certainly, some of those figures are known or reasonably

foreseeable witnesses in the case. As Mr. Trump points out,

some of those same individuals also have written books about

their work in his administration and have given interviews that

Mr. Trump views as unfavorable. Trump Resp. Opp.

Prosecution’s Mot. for Prior Restraints 10 n.7, ECF 60 (Sept.

25, 2023). Mr. Trump has a First Amendment interest in

publicly debating those individuals’ commentaries in a way

that is independent of and disassociated from any role they

might have in the trial. See Brown, 456 U.S. at 53. Yet the

Order would proscribe such speech because it would speak

about someone who is a reasonably foreseeable witness, even

if Mr. Trump’s speech would have nothing to do with their

witness role or the possible content of any testimony.

The interest in protecting witnesses from intimidation and

harassment is doubtless compelling, but a broad prohibition on

speech that is disconnected from an individual’s witness role is

not necessary to protect that interest, at least on the current

record. Indeed, public exchanges of views with a reasonably

foreseeable witness about the contents of his forthcoming book

are unlikely to intimidate that witness or other potential

witnesses weighing whether to come forward or to testify

truthfully.

In so holding, we underscore a critical consideration: The

only rationale invoked by the district court for its Order as to

witnesses is their willingness to come forward and to provide

evidence truthfully. Order at 2. Yet commonly, one of the

most powerful interests supporting broad prohibitions on trial

participants’ speech is to avoid contamination of the jury pool,

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to protect the impartiality of the jury once selected, to confine

the evidentiary record before the jury to the courtroom, and to

prevent intrusion on the jury’s deliberations. See Russell, 726

F.2d at 1009–1010; United States v. Tijerina, 412 F.2d 661,

666–667 (10th Cir. 1969); see also Sheppard, 384 U.S. at 358–

361 (emphasizing a trial court’s responsibility “to protect the

jury from outside influence[,]” including through regulating the

speech of parties). Since unrestricted speech by those involved

in a trial may prejudice actual or potential jurors in ways that

are difficult to remedy, courts have reasonable leeway to

regulate those participants’ speech. Gentile, 501 U.S. at 1075–

1076; Sheppard, 384 U.S. at 362–363.

Here, however, the district court based the Order

exclusively on the risks of influencing witnesses and

intimidating or harassing other trial participants, and not on the

need to ensure jury impartiality or to protect the jury from

outside influence. Order at 2–3. So our holding addresses only

the first two interests as a basis for the Order.18

2

Following Mr. Trump’s motion to stay the Order, the

district court clarified that it meant its Order to cover only those

“kinds of ‘targeting’ statements that could result in ‘significant

and immediate risk[s]’ to ‘the integrity of these

18

Since the district court did not rely on the interest in protecting jury

impartiality and independence, we do not consider whether that

interest might support different restrictions from those we hold are

justified to protect witnesses, counsel, and court and attorney staff.

As a result, nothing in this opinion speaks to the district court’s

authority to consider additional measures to protect the jury pool and

jury should such protection prove necessary going forward.

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proceedings[,]’” Dist. Ct. Stay Order at 5 (quoting Order at 2),

specifying that “[t]he motion hearing and corresponding Order

provide substantial context for and examples of” prohibited

statements, id. at 5–6.

The problem is that the discussions and debates within the

hearing transcript do not meaningfully narrow the Order’s

overbreadth. In its order denying a stay pending appeal, the

district court highlighted hypothetical examples offered during

the hearing of “‘targeting’ statements that could result in

‘significant and immediate risk[s]’ to ‘the integrity of these

proceedings.’” Dist. Ct. Stay Order at 5 (emphasis added)

(quoting Order at 2); see Dist. Ct. Stay Order at 5–6. The court

then offered two examples of former President Trump’s prior

statements to illustrate the meaning of the word “target.” Dist.

Ct. Stay Order at 6–7. But the only example given of a prior

statement that would not violate the Order was:

Does anyone notice that the Election Rigging Biden

Administration never goes after the Riggers, but only after

those that want to catch and expose the Rigging dogs.

Massive information and 100% evidence will be made

available during the Corrupt Trials started by our Political

Opponent. We will never let 2020 happen again. Look at

the result, OUR COUNTRY IS BEING DESTROYED.

MAGA!!!

Dist. Ct. Stay Order at 6.

But that post does not even arguably fall within the bounds

of the Order in the first place because it does not identify,

concern, or otherwise discuss any covered person. Without an

example of speech about a person covered by the Order that

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would not constitute forbidden targeting, the transcript does not

meaningfully narrow the Order’s operative language in a way

that accommodates both the weighty free speech interests and

the compelling judicial interests at stake.

For those reasons, we hold that the Order is not sufficiently

narrowly tailored and so can be upheld only in part, as

explained below.

B

Rather than prohibiting speech that “target[s]” known or

reasonably foreseeable witnesses, the Order must focus more

directly and narrowly on comments that speak to or are about

those persons’ potential participation in the investigation or in

this criminal proceeding. That allows the former President to

continue to speak out about those same persons’ books,

articles, editorials, interviews, or political campaigns as long as

he does so in a manner that does not concern their roles as

witnesses or the content of any expected testimony. For those

witnesses who previously served or are currently serving in

high-level government positions, narrowing language would

also allow the former President to voice his opinions about how

they performed their public duties, wholly separate from their

roles as potential witnesses. Such speech about the roles of

high-ranking public officials in the conduct of “governmental

affairs” constitutes core political speech entitled to the

strongest form of First Amendment protection. Mills, 384 U.S.

at 218–219. And because such statements would not concern

the persons’ potential participation in the investigation or in

this criminal proceeding, the “magnitude” and “likelihood” of

the danger posed to the proceeding is lower. See Landmark

Commc’ns, 435 U.S. at 843.

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By contrast, Mr. Trump’s interest in commenting publicly

on a potential witness’s decision to participate in the criminal

investigation, choice to cooperate with either party, or expected

testimony encroaches on the weighty public interest in the fair

administration of criminal justice. “Trial by newspaper”—or,

nowadays, social media—can pose a significant and imminent

danger to the fair and proper functioning of the judicial process

and its truth-finding function. Pennekamp, 328 U.S. at 359

(Frankfurter, J., concurring). The unique megaphone a

defendant wields, amplified by social media, ramps up the risk

of public and press reactions and attention capable of altering

or swaying witnesses’ participation in the trial or the content of

their testimony. The risk is particularly significant that public

statements about certain witnesses’ involvement in the case

may intimidate other potential witnesses from providing

testimony, encourage them to alter their testimony, or dissuade

them from cooperating with investigators. In addition, a

prohibition on speech concerning witnesses’ participation in

this case reinforces Mr. Trump’s condition of release

forbidding him to “communicate about the facts of this case

with any individual known to [Mr. Trump] to be a witness,

except through counsel or in the presence of counsel.” Order

Setting Conditions of Release 3.

Importantly, an order restricting communications

concerning individuals’ roles as witnesses in a criminal

proceeding does not close the door to such speech. It instead

relocates such commentary to the courtroom, where the content

and credibility of witnesses can be challenged through the

time-tested crucible of examination and cross-examination “in

the calmness and solemnity of the courtroom according to legal

procedures.” Sheppard, 384 U.S. at 350–351 (quoting Cox,

379 U.S. at 583 (Black, J., dissenting)). After all, “[l]egal trials

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are not like elections, to be won through the use of the meeting-

hall, the radio, and the newspaper.” Id. at 350 (quoting

Bridges, 314 U.S. at 271).

In short, requiring a nexus between Mr. Trump’s speech

and a witness’s potential participation in the criminal

proceeding affords “freedom of discussion * * * the widest

range” that is “compatible with the essential requirement of the

fair and orderly administration of justice.” Pennekamp, 328

U.S. at 347. Given the trial court’s latitude to “adopt

safeguards necessary and appropriate to assure that the

administration of justice at all stages is free from outside

control and influence,” an order that prohibits participants from

engaging in speech concerning reasonably foreseeable

witnesses’ potential participation in the investigation or in this

criminal proceeding would be “narrowly drawn” toward

protecting “the integrity of the criminal process.” Cox, 379

U.S. at 562.19

When the Supreme Court has spoken of courts’ authority

to restrict trial participants’ speech, it has framed those

19

Other courts have upheld speech-limiting orders that similarly

require linkage between the communication and the person’s

participation as a witness. See, e.g., Russell, 726 F.2d at 1008

(sustaining order prohibiting potential witnesses from making

statements to media “that relate[] to, concern[], or discuss[] the

testimony such potential witnesses may give in this case, or any of

the parties or issues such potential witness expects or reasonably

should expect to be involved in this case”) (emphasis omitted);

Tijerina, 412 F.2d at 663 & n.1 (upholding order prohibiting parties,

counsel, and witnesses from publicly speaking about “the merits of

the case, the evidence, actual or anticipated, the witnesses or the

rulings of the Court”).

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restrictions in the context of speech about the case in which the

restrictions are imposed. See Sheppard, 384 U.S. at 361

(discussing a court’s authority to “proscribe[] extrajudicial

statements by any lawyer, party, witness, or court official

which divulged prejudicial matters, such as the * * * the

identity of prospective witnesses or their probable testimony;

any belief in guilt or innocence; or like statements concerning

the merits of the case”) (emphases added); Gentile, 501 U.S. at

1076 (acknowledging the State’s legitimate interest in

prohibiting attorney “speech having a substantial likelihood of

materially prejudicing that proceeding”); id. at 1074 (reasoning

that lawyers’ “extrajudicial statements” about the case “pose a

threat to the fairness of a pending proceeding since lawyers’

statements are likely to be received as especially authoritative”

in light of lawyers’ “special access to information [about the

case] through discovery and client communications”).

To be clear, narrowing the Order’s reach to statements

concerning reasonably foreseeable witnesses’ potential

participation in the investigation or in this criminal proceeding

does not require that the statements facially refer to the

person’s potential status as a witness or to expected testimony.

Context matters. The statement that a potential witness “is a

liar” might well concern that person’s testimony if made on the

eve of trial or immediately following news reports that the

person is cooperating with investigators. The same words

might not concern that person’s status as a witness if uttered

immediately after and in response to the release of that person’s

book or media interview unrelated to this court proceeding.

Similarly, when Mr. Trump makes comments about a

high-profile figure, context will shed critical light on whether

that speech concerned other aspects of that person’s public life

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or her testimonial intentions. By the same token, were Mr.

Trump to make public statements about a poll worker whose

name he would not know but for that worker’s anticipated

participation in this case, determining that the statements

concerned that person in their capacity as a potential witness

will be more straightforward. This would be true whether or

not the statements on their face mention the witness’s

anticipated testimony.

Two posts help illustrate the requisite nexus between Mr.

Trump’s statements and a foreseeable witness’s potential

participation in the criminal proceeding. Shortly after former

Attorney General William Barr gave a televised interview, Mr.

Trump posted a video on his social media account in which he

said: “Why does Fox News constantly put on slow-thinking

and lethargic Bill Barr, who didn’t have the courage or stamina

to fight the radical left lunatics while he was the Attorney

General of the United States, and who even more importantly

refused to fight election fraud, of which there was much?”

Special Counsel Mot. 11 n.20. That statement’s criticisms of

Barr’s actions in the aftermath of the 2020 election do not

concern any role he may have as a witness in this criminal

proceeding.

On the other hand, hours after news broke asserting that

former Chief of Staff Mark Meadows was cooperating with the

Special Counsel, Mr. Trump asked on social media whether

Meadows was the type of “weakling[] and coward[]” who

would “make up some really horrible ‘STUFF’” about Mr.

Trump in exchange for “IMMUNITY against Prosecution

(PERSECUTION!) by Deranged Prosecutor, Jack Smith.”

Special Counsel Mot. Reply 9. That statement, considering

both its timing and its content, concerns Meadows’s potential

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cooperation with the prosecution and his potential testimony

against Mr. Trump and so is properly proscribed.

There no doubt will be some close cases in which it will

be difficult to determine whether a statement concerns a

foreseeable witness’s potential participation in the

investigation or in this criminal proceeding. But resolving such

factual disputes falls well within the district court’s

wheelhouse.

Mr. Trump argues that the Order’s reference to

“reasonably foreseeable witnesses” and to the substance of

their potential testimony is unconstitutionally vague. Trump

Br. 53–54. That is incorrect.

A legal rule is not unconstitutionally vague so long as it

gives “sufficient warning” that persons can conform their

conduct to the law and “avoid that which is forbidden.” United

States v. Bronstein, 849 F.3d 1101, 1106–1107 (D.C. Cir.

2017) (quoting Rose v. Locke, 423 U.S. 48, 50 (1975)). The

indictment paints a reasonably clear picture of the primary

participants in this case, Indictment ¶¶ 83–120, and ongoing

discovery will provide further clarity, see United States v.

Morrison, 98 F.3d 619, 630 (D.C. Cir. 1996) (holding that a

witness was “foreseeable” to the defendant because the

defendant had prior dealings with the witness related to the

case); cf. Ward v. Rock Against Racism, 491 U.S. 781, 794

(1989) (“[P]erfect clarity and precise guidance have never been

required even of regulations that restrict expressive activity.”);

Grayned v. City of Rockford, 408 U.S. 104, 110 (1972)

(“Condemned to the use of words, we can never expect

mathematical certainty from our language.”).

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In short, the Order’s effort to protect witnesses is

permissible as modified to prohibit only those statements that

concern reasonably foreseeable witnesses’ potential

participation in the investigation or in this criminal proceeding.

Whether a statement about a reasonably foreseeable witness

concerns her potential participation in the investigation or in

this criminal proceeding must be determined by reference to

the statement’s full context.

C

As for the protection of counsel and staff working on the

case, the Order requires some recalibration to sufficiently

accommodate free speech.

We start by noting the obvious. This criminal proceeding

places significant demands on all counsel, the defendant, and

court and counsel staff. The case, which is the object of

enormous public and press attention, is just a few months from

trial and involves 47,000 pages of key documents and hundreds

of potentially relevant witnesses. Pretrial briefing alone has

been voluminous, with four separate motions to dismiss the

indictment on various grounds, in addition to ten other

substantive motions.

Some statements concerning counsel or staff working on

this case, or their family members, are highly likely to trigger

a barrage of threats, intimidation, or harassment that pose an

imminent risk of materially interfering with the work of

counsel and court personnel as they labor to fairly and orderly

adjudicate this complex criminal proceeding. In view of the

demands on counsel and court personnel, and the “significant

and immediate risk that * * * attorneys, public servants, and

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other court staff will themselves become targets for threats and

harassment[,]” Order at 2, the district court had the authority to

take some steps to prevent obstruction of the court’s capacity

to manage and conduct this case in an effective, efficient, and

timely manner, see Sheppard, 384 U.S. at 363.

At the same time, speech about the criminal justice system

is vital. The courts are the people’s Third Branch of

government and, especially in criminal cases, “play a vital part

in a democratic state[.]” Gentile, 501 U.S. at 1035. As a result,

the public has a strong and “legitimate interest in their

operations.” Id. That interest is magnified in criminal cases,

where public scrutiny promotes transparency, accountability,

and integrity. “[I]t would be difficult to single out any aspect

of government of higher concern and importance to the people

than the manner in which criminal trials are conducted.”

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575

(1980). Allowing robust speech can “guard[] against the

miscarriage of justice by subjecting the police, prosecutors, and

judicial processes to extensive public scrutiny and criticism.”

Sheppard, 384 U.S. at 350.

As written, the Order prohibits interested parties from

making or directing others to make any public statements that

target—that are directed to or aimed at—prosecutors or court

staff. Order at 3. That goes too far. Prosecutors are vested

with immense authority and discretion, including the power to

take steps that can result in persons’ loss of liberty. The public

has a weighty interest in ensuring that such power is exercised

responsibly. And criminal defendants facing potential

curtailments of liberty have especially strong interests in

commenting, within reasonable bounds, on prosecutors’ use of

their power.

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Likewise, the courts and the judges who sit on them enjoy

“no greater immunity from criticism than other persons or

institutions.” Landmark Commc’ns, 435 U.S. at 839 (quoting

Bridges, 314 U.S. at 289 (Frankfurter, J., dissenting)). The

district judge in this case plays a centrally important role in

adjudicating this case and guiding it through trial. Those

reasons, presumably, are why the district court commendably

did not include in the Order speech directed at the judge herself

or the court as an institution.

For similar reasons, the Order should not have restricted

speech about the Special Counsel himself. The Order already

exempts speech about the Department of Justice as an

institution. See Order at 3. As conceded at oral argument, “the

Special Counsel himself is * * * both an individual trial

participant and a representative of the institution”—that is, the

Department of Justice’s Office of Special Counsel. Oral Arg.

Tr. 99:6–8; see Special Counsel Jack Smith Announces a New

Trump Indictment, C-SPAN (Aug. 1, 2023) (Special Counsel’s

public announcement of the indictment in this case).20 As a

high-ranking government official who exercises ultimate

control over the conduct of this prosecution, the Special

Counsel is no more entitled to protection from lawful public

criticism than is the institution he represents. See Landmark

Commc’ns, 435 U.S. at 839 (quoting Bridges, 314 U.S. at 289

(Frankfurter, J., dissenting)).

As for other counsel in this case and the court’s and

counsel’s staffs, we hold that adding a mens rea requirement

20

https://www.c-span.org/video/?529681-1/special-counsel-jack-sm

ith-announces-trump-indictment; https://www.c-span.org/video/?52

8657-1/special-counsel-jack-smith-statement-indictment-donald-tru

mp.

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will appropriately balance the court’s institutional interests and

the free speech values at stake. As a general rule, state-of-mind

requirements “lessen[] the hazard of self-censorship” and

“provide[] breathing room” for speech. Counterman, 600 U.S.

at 75 (formatting modified). In this case, the requirement

affords “strategic protection” to Mr. Trump’s speech by

guarding against the prospect of chilling speech that poses an

immaterial risk to the criminal proceedings. Id. (quotation

marks omitted).21

At the same time, state-of-mind requirements allow

vindication of the compelling judicial interest in ensuring that

speech by trial participants does not obstruct or delay the

criminal proceeding. Here, the district court found, and the

record demonstrates, that there is a “significant and immediate

risk that * * * attorneys, public servants, and other court staff

will themselves become targets for threats and harassment”

because of Mr. Trump’s speech. Order at 2. Threats of

physical harm, stalking, or doxing almost inevitably will slow

or temporarily halt work on the criminal proceeding as

21

No mens rea is needed with respect to the portion of the Order

dealing with speech about witnesses. As explained above, any

speech by trial participants concerning witnesses’ participation in the

case, regardless of motive or mindset, threatens to discourage or

influence witness testimony—testimony that the court has an

obligation to keep free of outside influence. See Sheppard, 384 U.S.

at 359. Against that threat, defendants have little legitimate interest

in publicly commenting on the fact or expected substance of witness

testimony before it occurs. See Section V.B, supra. Further, unlike

witnesses, the court’s and counsel’s staffs have elected to serve in

government or on this case. For their part, witnesses have civic and

legal duties to truthfully provide relevant information, but may find

any participation in the trial process unwelcome and difficult.

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personnel are distracted addressing threats to their or their

families’ safety, or to the security of courthouse and office

premises.

We hold that the district court appropriately restricted

speech concerning counsel and staff members, or their family

members, to the extent it is made with either the intent to

materially interfere with their work or the knowledge that such

interference is highly likely to result. By requiring at least

knowledge of a high likelihood of interference, we make clear

that it is not enough that Mr. Trump has “done more than make

a bad mistake.” See Counterman, 600 U.S. at 80. He must

fairly bear responsibility for the known consequences of his

actions. See id.; see also id. at 78–79 (describing mens rea

standards). That restriction also best accounts for the

competing interests in effective functioning of the judicial,

prosecutorial, and defense processes and the substantial First

Amendment interests in speech about how governmental

authority and positions of prominent responsibility in the

criminal case are used.

Furthermore, by requiring that the interference be material,

we make clear that statements including or leading to

intemperate and rude remarks—without more—are not

proscribed. Working in the criminal justice sphere fairly

requires some thick skin. At the same time, the requirement of

materiality ensures, for example, that words objectively

threatening imminent physical harm—whether the covered

person utters such words directly or speaks with the requisite

knowledge or intent that such threats are highly likely to

occur—are proscribed. Words inducing mass robocalling,

doxing, or true threats being called into offices or the

courthouse would also be proscribed. These are the types of

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material interference that would obstruct a reasonable person’s

performance of their duties, and the type of threats that have

resulted from some of Mr. Trump’s prior statements, as

demonstrated by the record. See Section IV.B.1, supra. The

First Amendment does not empower a criminal defendant or

other trial participants to engage in speech intended to delay or

obstruct the justice process or with the knowledge that such

interference is highly likely to result.

Adding proof of state of mind “no doubt[] has a cost: Even

as it lessens chill of protected speech,” it makes enforcing the

Order harder. Counterman, 600 U.S. at 78. But that tradeoff

is necessary here to protect against the “substantive evil of

unfair administration of justice[,]” while allowing as much

speech as is consistent with that protective barrier. Landmark

Commc’ns, 435 U.S. at 844. Furthermore, the relevant mental

states can commonly be proved with objective evidence. See

Washington v. Davis, 426 U.S. 229, 253 (1976) (Stevens, J.,

concurring) (“Frequently the most probative evidence of intent

will be objective evidence of what actually happened rather

than evidence describing the subjective state of mind of the

actor. For normally the actor is presumed to have intended the

natural consequences of his deeds.”); United States v. Mejia,

597 F.3d 1329, 1341 (D.C. Cir. 2010) (A fact finder may infer

that “a person intends the natural and probable consequences

of acts knowingly done[.]”).

As with its assessment of statements concerning witnesses,

the district court’s consideration of speech about other trial

participants should account for context, including such factors

as the statement’s phrasing, timing, setting, and meaning. And

we leave it open to the district court, with her broad authority

to manage and conduct this complex and high-profile trial, to

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decide whether additional restrictions are needed on speech

about counsel or about staff as the trial date draws nearer or

circumstances change.

Finally, Mr. Trump argues that the Order’s application to

“[a]ll interested parties in this matter,” Order at 3, is

unconstitutionally vague, see Trump Br. 52–53. The district

court clarified that “interested party” means only “the parties

and their counsel.” Dist. Ct. Stay Order at 5. In affirming the

Order in part, we read it with that clarification, which moots

the vagueness challenge.

VI

For the foregoing reasons, we hold that some aspects of

the defendant’s speech pose a significant and imminent risk to

the fair and orderly adjudication of this criminal proceeding,

which justified protective action by the district court. We

affirm in part and vacate in part the district court’s Order to

best accommodate the competing constitutional interests at

stake, as required by Landmark Communications.

Specifically, we affirm the Order 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,

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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. The administrative stay issued by this

court on November 3, 2023, is hereby dissolved.

As should be clear, but to avoid any potential doubt, as

affirmed in part and vacated in part, the Order also leaves open

the categories of speech the district court explicitly stated were

permissible under its initial ruling. See Order at 3. Mr. Trump

is free to make statements criticizing the current

administration, the Department of Justice, and the Special

Counsel, as well as statements that this prosecution is

politically motivated or that he is innocent of the charges

against him. See id.

We do not allow such an order lightly. Mr. Trump is a

former President and current candidate for the presidency, and

there is a strong public interest in what he has to say. But Mr.

Trump is also an indicted criminal defendant, and he must

stand trial in a courtroom under the same procedures that

govern all other criminal defendants. That is what the rule of

law means.

So ordered.