ACLU argues Trump gag order in federal election subversion case is unconstitutional
By Kaanita Iyer, CNN
(CNN) — The American Civil Liberties Union and its Washington, DC, chapter filed an amicus brief in support of Donald Trump on Wednesday, arguing that the gag order against the former president in his federal election subversion case is unconstitutional.
The brief contends that the order issued by Judge Tanya Chutkan earlier this month, which limits what Trump can say about special counsel Jack Smith’s prosecution of his alleged attempt to overturn the 2020 election results, violates the 2024 GOP front-runner’s First Amendment rights.
The ACLU, which often challenged his administration’s policy, acknowledged that many of the things Trump “has said has been patently false and has caused great harm to countless individuals, as well as to the Republic itself.” Still, it argued, the former president “retains a First Amendment right to speak, and the rest of us retain a right to hear what he has to say.”
Trump has appealed the order. Chutkan temporarily froze the gag order last week to give the parties more time to brief her on the former president’s request to pause the order while the appeal plays out.
Wednesday’s brief – known as “friend of the court” or “amicus” brief – is meant to offer context and remind the judge that the eventual ruling could have historic implications. Given that ACLU is not one of the parties in the case, Chutkan does not have to consider its brief.
When handing down the order, Chutkan argued that Trump “does not have the right to say and do exactly what he pleases,” and specifically prohibited him from making any comments that directly “target” court personnel, potential witnesses or the special counsel and his staff.
The ACLU described the order and its use of “target” as vague.
“The entire order hinges on the meaning of the word ‘target,’” the ACLU wrote. “ But that meaning is ambiguous, and fails to provide the fair warning that the Constitution demands, especially when, as here, it concerns a prior restraint on speech.”
Smith alleges that Trump tried to overturn the 2020 election results by attempting to “exploit the violence and chaos” during the January 6, 2021, Capitol attack to convince lawmakers to delay the certification of the results. The former president faces four charges in the case – including conspiracy to defraud the United States and obstruct an official proceeding – all of which he has pleaded not guilty to.
Trump faces several other legal challenges as he looks to return to the White House, including a separate gag order in his New York civil fraud case.
The judge in the New York case fined Trump $10,000 Wednesday for violating that gag order, which bars him from speaking about any members of the court staff, following a $5,000 fine last week and warnings of imprisonment for an earlier violation infraction.
CNN’s Devan Cole, Piper Hudspeth Blackburn, Holmes Lybrand, Hannah Rabinowitz, Katelyn Polantz and Ariane De Vogue contributed to this report.
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