Appeals court declines to reconsider dispute over Trump gag order, teeing up potential Supreme Court fight

Washington — A federal appeals court in Washington, D.C., rejected a request by former President Donald Trump to reconsider an order limiting what he can say about his criminal case related to the aftermath of the 2020 election, setting up a potential Supreme Court fight over the matter.

In a short unsigned order issued Tuesday, the judges from the U.S. Court of Appeals for the District of Columbia Circuit denied Trump's request that they take up the dispute over the gag order "en banc," meaning in front of the full court. A three-judge panel largely upheld the gag order in December, allowing Trump to request a review by the full appeals court.

U.S. District Judge Tanya Chutkan, who is overseeing the case brought by special counsel Jack Smith against Trump in Washington, issued an order in October at the request of Smith that barred Trump from making inflammatory remarks targeting Smith, his staff, court personnel and possible witnesses who may be called to testify in the case.

The three-judge panel upheld most of Chutkan's order, ruling that Trump cannot target potential witnesses or speak publicly about any lawyers involved in the case — except Smith himself — or their families. However, Trump can continue criticizing the Biden administration and the Justice Department, and can claim that Smith's prosecution is politically motivated. 

Tuesday's order denying Trump's appeal indicated the decision was unanimous, with no judges requesting a vote on the matter. Trump's attorneys had previously indicated that they would likely take the matter to the Supreme Court if the appeals court did not rule in their favor.

CBS News has reached out to Trump's campaign for comment. 

In the December order, the three judges — Patricia Millett, Cornelia Pillard and Bradley Garcia — said they agreed with Chutkan that some aspects of Trump's public comments "pose a significant and imminent threat" to the integrity of the ongoing criminal prosecution, "warranting a speech-constraining protective order." 

But the judges also said the order put in place by Chutkan "sweeps in more protected speech than is necessary" and struck down portions of the restrictions, including those that prevented Trump from publicly speaking about Smith. 

Trump was charged with four counts related to alleged efforts to prevent the transfer of presidential power after the 2020 election. He has pleaded not guilty and denied all wrongdoing.

The former president's legal team argued that any gag order infringed on Trump's right to free speech, especially on the campaign trail, and linked his outspoken criticism about the special counsel's criminal case to his bid to return to the White House. Smith's team, however, contended that some of Trump's public comments and social media posts jeopardized a fair trial and the security of those involved.

The trial was originally scheduled for March, but the case is on hold as the appeals court considers Trump's separate claim of presidential immunity from prosecution. Chutkan rejected that argument last year and ruled that while all trial deadlines are paused, the restrictions of the gag order remain in effect as the appeals process plays out.

Robert Legare

Robert Legare is a CBS News multiplatform reporter and producer covering the Justice Department, federal courts and investigations. He was previously an associate producer for the "CBS Evening News with Norah O'Donnell."