Trump Appeal of Limited Gag Order in DC

USCA Case #23-3190 Document #2025149 Filed: 11/02/2023 Page 1 of 35
ORAL ARGUMENT NOT YET SCHEDULED
No. 23-3190
IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA,

Appellee,
v.
DONALD J. TRUMP,
Defendant-Appellant.
______________________
On Appeal from the United States District Court

for the District of Columbia
DEFENDANT-APPELLANT PRESIDENT DONALD J. TRUMP’S

EMERGENCY MOTION FOR STAY PENDING APPEAL AND REQUEST
FOR TEMPORARY ADMINISTRATIVE STAY
RELIEF REQUESTED BY: November 10, 2023

TABLE OF CONTENTS
TABLE OF AUTHORITIES………………………………………………………iv
GLOSSARY……………………………………………………………………...viii
INTRODUCTION………………………………………………………………….1
STATEMENT OF THE CASE……………………………………………………..2
ARGUMENT……………………………………………………………………….7
I. President Trump Is Likely To Prevail on Appeal……………………………8
A. The Gag Order Is Subject to the Most Exacting Scrutiny…………………...8
1. A gag order requires a “clear and present danger to the

administration of justice.”…………………………………………….8
2. Prior restraints are subject to the most exacting scrutiny……………..9
3. Political campaigns require the First Amendment’s “fullest and

most urgent application.”……………………………………………10
4. The Gag Order violates the rights of tens of millions of Americans

to receive President Trump’s speech………………………………...11
5. The Gag Order imposes a classic heckler’s veto……………………13
6. The Gag Order shields public figures from public criticism………..15
7. The Gag Order reflects forbidden viewpoint discrimination………..16
B. The Gag Order Cannot Withstand Any Level of Scrutiny…………………17
1. The prosecution did not establish any compelling interest………….17
2. The Gag Order is not narrowly tailored……………………………..18
C. The Gag Order Is Incurably Vague…………………………………………19
ii
III. The Remaining Equitable Factors Favor a Stay…………………………...21
CONCLUSION…………………………………………………………………...23
CERTIFICATE OF SERVICE…………………………………………………….24
CERTIFICATE OF COMPLIANCE……………………………………………...25
CERTIFICATE OF PARTIES AND AMICI CURIAE…………………………….26
DISCLOSURE STATEMENT…………………………………………………….27
iii
TABLE OF AUTHORITIES
CASES
ACLU, Inc. v. Zeh,
864 S.E.2d 422 (Ga. 2021) ................................................................................15
Brandenburg v. Ohio,
395 U.S. 444 (1969) ..........................................................................................13
Brown v. Louisiana,
383 U.S. 131 (1966) ..........................................................................................14
Buckley v. Valeo,
424 U.S. 1 (1976) ..............................................................................................20
Burton v. City of Belle Glade,

178 F.3d 1175 (11th Cir. 1999) .........................................................................21
Cohen v. Beneficial Indus. Loan Corp.,

337 U.S. 541 (1949) ............................................................................................7
Collin v. Chicago Park Dist.,

460 F.2d 746 (7th Cir. 1972) .............................................................................14
Counterman v. Colorado,
600 U.S. 66 (2023) ............................................................................................13
Cox v. Louisiana,
379 U.S. 536 (1965) ..........................................................................................14
Crane v. Ariz. Republic,

972 F.2d 1511 (9th Cir. 1992) ...........................................................................15
Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cnty.,

274 F.3d 377 (6th Cir. 2001) .............................................................................22
Diesen v. Hessburg,
455 N.W.2d 446 (Minn. 1990) .........................................................................15
iv
Edwards v. South Carolina,

372 U.S. 229 (1963) ..........................................................................................14
Elrod v. Burns,
427 U.S. 347 (1976) ......................................................................................7, 22
Forsyth County v. Nationalist Movement,

505 U.S. 123 (1992) ..........................................................................................14
Gentile v. State Bar of Nevada,

501 U.S. 1030 (1991) ..........................................................................................9
Gertz v. Robert Welch, Inc.,

418 U.S. 323 (1974) ..........................................................................................15
Grayned v. City of Rockford,

408 U.S. 104 (1972) ..........................................................................................21
Hynes v. Mayor & Council of Borough of Oradell,

425 U.S. 610 (1976) ..........................................................................................20
In re Murphy-Brown, LLC,
907 F.3d 788 (4th Cir. 2018) ...............................................................................7
In re Rafferty,
864 F.2d 151 (D.C. Cir. 1988) .............................................................................7
Landmark Commc'ns, Inc. v. Virginia,

435 U.S. 829 (1978) ........................................................................... 8, 9, 17, 19
Matal v. Tam,
582 U.S. 218 (2017) ............................................................................. 14, 16, 17
McIntyre v. Ohio Elec. Comm’n,

514 U.S. 334 (1995) ..........................................................................................10
Meyer v. Grant,
486 U.S. 414 (1988) ..........................................................................................10
Monitor Patriot Co. v. Roy,

401 U.S. 265 (1971) ..........................................................................................10
v
NAACP v. Button,
371 U.S. 415 (1963) ..........................................................................................20
Nebraska Press Ass'n v. Stuart,

427 U.S. 539 (1976) ............................................................. 9, 10, 17, 18, 19, 20
Nken v. Holder,
556 U.S. 418 (2009) ......................................................................................7, 22
Packingham v. North Carolina,

582 U.S. 98 (2017) ............................................................................................ 11
Phelps–Roper v. Nixon,
545 F.3d 685 (8th Cir. 2008) .............................................................................22
R.A.V. v. City of St. Paul,

505 U.S. 377 (1992) ................................................................................... 16, 17
Red Lion Broad. Co. v. F.C.C.,

395 U.S. 367 (1969) ..........................................................................................12
Rosenblatt v. Baer,
383 U.S. 75 (1966) ............................................................................................15
Sheppard v. Maxwell,
384 U.S. 333 (1966) ......................................................................................8, 19
Smith v. Daily Mail Pub. Co.,

443 U.S. 97 (1979) ............................................................................................10
Snyder v. Phelps,
562 U.S. 443 (2011) ..........................................................................................10
Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) ................................................................................... 10, 12
Texans for Free Enter. v. Tex. Ethics Comm’n,

732 F.3d 535 (5th Cir. 2013) .............................................................................22
United States v. Brown,

218 F.3d 415 (5th Cir. 2000) .............................................................. 7, 9, 12, 13
vi
United States v. Ford,

830 F.2d 596 (6th Cir. 1987) ...........................................................7, 8, 9, 11, 12
Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc.,

425 U.S. 748 (1976) .......................................................................................... 11
Watson v. City of Memphis, 373 U.S. 526 (1963) ....................................................14
vii
GLOSSARY
Gag Order………………Opinion and Order in United States v. Trump, No. 1:23-

cr-257-TSC, D. Ct. Doc. 105 (Oct. 17, 2023)
the prosecution…………the United States of America
viii
INTRODUCTION
No court in American history has imposed a gag order on a criminal defendant
who is actively campaigning for public office—let alone the leading candidate for
President of the United States. That centuries-long practice was broken on October
17, 2023, when the district court entered its Opinion and Order, A1 (the “Gag
Order”), muzzling President Trump’s core political speech during an historic
Presidential campaign.
Given the Gag Order’s extraordinary nature, one would expect an
extraordinary justification for it. Yet none exists. President Trump has made months
of public statements about this case, but the Department of Justice (“the
prosecution”) submitted no evidence of any actual or imminent threat to the
administration of justice. Instead, when asked about the supposed threat to the case,
the prosecution admitted, “of course this prejudice is speculative.”
Based this speculation, the district court entered a sweeping, viewpoint-based
prior restraint on the core political speech of a major Presidential candidate, based
solely on an unconstitutional “heckler’s veto.” The Gag Order violates the First
Amendment rights of President Trump and over 100 million Americans who listen
to him.
President Trump’s uniquely powerful voice has been a fixture of American
political discourse for eight years, and central to the American fabric for decades.
1
The prosecution’s claim that his core political speech suddenly poses a threat to the
administration of justice is baseless. The prosecutors and potential witnesses
addressed by President Trump’s speech are high-level government officials and
public figures, many of whom routinely attack President Trump in their own public
statements, media interviews, and books.
President Trump’s viewpoint and modes of expression resonate powerfully
with tens of millions of Americans. The prosecution’s request for a Gag Order
bristles with hostility to President Trump’s viewpoint and his relentless criticism of
the government—including of the prosecution itself. The Gag Order embodies this
unconstitutional hostility to President Trump’s viewpoint. It should be immediately
stayed.
President Trump requests a ruling on this motion by November 10, 2023, and
requests an administrative stay pending the Court’s ruling. President Trump has
notified the prosecution, who note that they oppose this motion. President Trump
respectfully asks that this appeal be expedited to the greatest extent possible.
STATEMENT OF THE CASE
President Donald J. Trump is the leading Republican candidate for President
of the United States. He has a dominant lead in the Republican primary polls, and
he substantially leads Joe Biden in head-to-head matchup polls. President Trump
has over 100 million followers across social-media platforms.
2
On August 1, 2023, President Trump was indicted on four counts related to
his attempts to dispute the outcome of the 2020 Presidential election, which he and
tens of millions of Americans regard as rigged and stolen. A90. As this case
proceeds, President Trump continues to campaign for President and frequently
engages in core political speech, including about this case. His central campaign
messages include statements that this case is a politically motivated persecution
designed to derail his candidacy, and that the prosecutors against him are abusing
their power. A142-143. He also criticizes major public figures who are connected
to the case, especially those who publicly attack him. A191. Among others,
President Trump has recently sharply criticized the Biden Administration for
neglecting national security and allowing threats to the United States to escalate
while it attempts to silence its leading political opponent, him, and for allowing the
District of Columbia to become a “crime-ridden embarrassment to our nation,”
A142.
On September 15, 2023, the prosecution moved for a gag order on President
Trump’s public statements. A135. The prosecution contended that, “[i]n the period
between … November 3, 2020, and … January 6, 2021”—i.e., almost three years
ago—President Trump made public statements about certain individuals, “and the
individuals whom he targeted were subject to threats and harassment.” A136. All
the prosecution’s examples of such “threats” or “harassment” were from late 2020.
3
A137-39. The most recent public statement by President Trump that was supposedly
followed by threats or harassment was from December 2020. A139.
The prosecution then provided ten screen shots of social-media posts by
President Trump since his indictment, dated August 4–8, 21, 23, and 28, 2023.
A140-46. These included five posts criticizing the Biden Department of Justice and
the prosecutors. A142-44. They included two posts referring to potential
witnesses—Rudy Giuliani and former Vice President Mike Pence—which made no
clear reference to this case. A146. The prosecution produced no evidence that any
prosecutor or witness had been harassed or threatened after any of these posts, nor
any evidence that any individual had felt intimidated. A146. The prosecution
presented no evidence of any statements about court staff. A146.
On September 29, 2023, the prosecution filed a reply, which quoted from six
more social-media posts from President Trump, dated September 5, 6, 22, 23, and
26, 2023, and a media interview of President Trump on September 17, 2023. A190-
91. These included posts criticizing former Vice President Pence, former Attorney
General Bill Barr, former Chairman of the Joint Chiefs of Staff Mark Milley, and
Georgia Secretary of State Brad Raffensberger. A190-91. All those mentioned by
President Trump were high-level government officials and public figures. The
prosecution submitted no evidence that any prosecutor or witness had been
threatened after, or felt intimidated by, President Trump’s comments. A190-91.
4
The district court held a hearing on the motion on October 16, 2023. The
prosecution presented no evidence at the hearing. The court repeatedly expressed
concern that President Trump’s comments might inspire independent third parties to
engage in threats or harassment toward witnesses, prosecutors, or court staff. A44,
A48, A53, A56, A63, A70. The defense emphasized that the prosecution had
submitted no evidence of such harassment. A23, A29, A60. The court responded,
“Why should they have to?” A60. When the district court asked the prosecution
about its lack of evidence, the prosecution responded, “of course this prejudice is
speculative.” A65.
The defense proposed that “the easiest solution … is to adjourn the case [until]
after the presidential election.” A23. The district court responded: “This trial will
not yield to the election cycle and we’re not revisiting the trial date.” A23-24. The
other two times that defense counsel raised this alternative, the court again dismissed
it. A69, A82. The prosecution presented no evidence about the availability or
efficacy of any less restrictive alternatives.
On October 17, 2023, the district court entered its Opinion and Order. A1.
The Gag Order found that unidentified third parties might react to President Trump’s
speech with threats or harassment: “[W]hen Defendant has publicly attacked
individuals … those individuals are consequently threatened and harassed.” A2.
5
The Gag Order cited no evidence and made no findings of any such threats or
harassment since the case was filed. A2.
The Gag Order recited that “alternative measures such as careful voir dire,
jury sequestration, and cautionary jury instructions are sufficient to remedy only
some of the potential prejudices that the government’s motion seeks to address.” A1-
2. The Gag Order cited no evidence and made no other findings on this point. The
Gag Order did not mention a trial continuance as an “alternative measure[].” A1-2.
Based on this analysis, the district court ordered that:
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.
A3. The court included exemptions allowing President Trump to “criticiz[e] the
government generally,” to state “that Defendant is innocent of the charges against
him, or that his prosecution is politically motivated,” and to “criticiz[e] the campaign
platforms or policies of” candidates such as “Vice President Pence.” A3.
President Trump filed a notice of appeal and moved for stay pending appeal.
A204. On October 29, 2023, the district court denied the motion for stay pending
appeal. A294.
6
ARGUMENT
Four factors govern a motion for stay pending appeal: “(1) whether the stay
applicant has made a strong showing that he is likely to succeed on the merits; (2)
whether the applicant will be irreparably injured absent a stay; (3) whether issuance
of the stay will substantially injure the other parties interested in the proceeding; and
(4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 434 (2009).
First, the Gag Order is an immediately appealable collateral order. “The loss
of First Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). The Gag
Order, therefore, “fall[s] in that small class which finally determine claims of right
separate from, and collateral to, rights asserted in the action, too important to be
denied review and too independent of the cause itself to require that appellate
consideration be deferred until the whole case is adjudicated.” In re Rafferty, 864
F.2d 151, 153 (D.C. Cir. 1988) (quoting Cohen v. Beneficial Indus. Loan Corp., 337
U.S. 541, 546 (1949)); see also United States v. Brown, 218 F.3d 415, 420 (5th Cir.
2000) (holding that a gag order against a criminal defendant was immediately
appealable); United States v. Ford, 830 F.2d 596, 598 (6th Cir. 1987) (same).1
1
If the Court determines that the Gag Order is not immediately appealable, President
Trump respectfully requests that the Court treat this motion as a petition for writ of
mandamus and grant it. See In re Murphy-Brown, LLC, 907 F.3d 788, 796 (4th Cir.
2018).
7
I. President Trump Is Likely To Prevail on Appeal.
A. The Gag Order Is Subject to the Most Exacting Scrutiny.
As a viewpoint-based prior restraint on the core political speech of a
Presidential candidate to an audience of over 100 million Americans, the Gag Order
is virtually per se invalid. At the very least, it is subject to the most exacting scrutiny.
1. A gag order requires a “clear and present danger to the

administration of justice.”
In Landmark Communications, Inc. v. Virginia, the Supreme Court held that
restrictions on speech about pending judicial proceedings require a showing of “clear
and present danger to the administration of justice.” 435 U.S. 829, 844 (1978). “The
operations of the courts and the judicial conduct of judges are matters of utmost
public concern.” Id. at 839. Public scrutiny of court proceedings “guards against
the miscarriage of justice by subjecting the police, prosecutors, and judicial
processes to extensive public scrutiny and criticism.” Id. (quoting Sheppard v.
Maxwell, 384 U.S. 333, 350 (1966)).
Landmark Communications concerned restrictions on the media. See id. In
Ford, the Sixth Circuit applied the same standard to a gag order on a criminal
defendant who was also a political candidate. 830 F.2d at 598. Adopting “the
exacting ‘clear and present danger’ test for free speech,” the Sixth Circuit held that
the First Amendment does not draw distinctions between ordinary individuals and
corporate media: “We see no legitimate reasons for a lower threshold standard for
8
individuals, including defendants, seeking to express themselves outside of court
than for the press.” Id.
To be sure, in Gentile v. State Bar of Nevada, the Supreme Court held that a
State could impose a differently phrased—though still exacting—standard for
statements by attorneys, i.e., “a substantial likelihood of material prejudice.” 501
U.S. 1030, 1063 (1991). But Gentile emphasized that attorneys are not ordinary
citizens, but officers of the court subject to unique restrictions—in contrast to “the
common rights of citizens.” See id. at 1066-75, 1074; but see Brown, 218 F.3d at
428 (adopting the Gentile standard for criminal defendants). Here, to the extent that
the two standards differ—but see Gentile, 501 U.S. at 1037 (plurality opinion)—the
“clear and present danger” test applies.
In addition, the Gag Order contravenes a series of First Amendment
principles, all of which independently call for the most exacting scrutiny.
2. Prior restraints are subject to the most exacting scrutiny.
First, unlike the restrictions at issue in Landmark Communications and
Gentile, the Gag Order is a prior restraint on speech. In Nebraska Press Association
v. Stuart, the Supreme Court emphasized “that prior restraints on speech and
publication are the most serious and the least tolerable infringement on First
Amendment rights.” 427 U.S. 539, 559 (1976). “[A] prior restraint” is “one of the
most extraordinary remedies known to our jurisprudence.” Id. at 562. “[T]he
9
protection against prior restraint should have particular force as applied to reporting
of criminal proceedings….” Id.
“Prior restraints have been accorded the most exacting scrutiny,” Smith v.
Daily Mail Pub. Co., 443 U.S. 97, 102 (1979), which applies to the Gag Order here.
3. Political campaigns require the First Amendment’s “fullest

and most urgent application.”
“Speech on matters of public concern is at the heart of the First Amendment’s
protection. That is because speech concerning public affairs is more than self-
expression; it is the essence of self-government.” Snyder v. Phelps, 562 U.S. 443,
451–52 (2011) (cleaned up); McIntyre v. Ohio Elec. Comm’n, 514 U.S. 334, 347
(1995). Likewise, the First Amendment’s “constitutional guarantee has its fullest
and most urgent application precisely to the conduct of campaigns for political
office.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 162 (2014) (quoting
Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)). Campaign speech lies “at
the core of our electoral process and of the First Amendment freedoms—an area …
where protection of robust discussion is at its zenith.” Meyer v. Grant, 486 U.S. 414,
425 (1988) (citations and quotations omitted).
Thus, both Ford and Brown granted virtually complete exemptions for the
defendant’s campaign speech. In Ford, the Sixth Circuit stated:
Here the defendant … is entitled to attack the alleged political motives of the
Republican administration which he claims is persecuting him because of his
political views and his race…. He is entitled to fight the obvious damage to
10
his political reputation in the press and in the court of public opinion, as well
as in the courtroom and on the floor of Congress. He will soon be up for
reelection. His opponents will attack him as an indicted felon. He will be
unable to respond in kind if the District Court’s order remains in place.
Ford, 830 F.2d at 600–01. In Brown, the Fifth Circuit noted that “[t]he district court
also made special allowances for Brown’s re-election campaign by lifting most of
the order … for the duration of the campaign…. Brown was able to answer, without
hindrance, the charges of his opponents regarding his indictment throughout the
race.” Brown, 218 F.3d at 430.
Here, the Gag Order restricts core political and campaign speech. The issues
underlying the indictment are “central to [Biden’s] re-election argument.” Kevin
Liptak, et al., Trump’s Third Indictment Is the Most Personal – and Trickiest – One
for Biden, CNN.com (Aug. 2, 2023), at
https://www.cnn.com/2023/08/02/politics/joe-biden-donald-trump-
indictment/index.html. The First Amendment permits President Trump to rebut
them and to criticize the current and former government officials attacking him.
4. The Gag Order violates the rights of tens of millions of

Americans to receive President Trump’s speech.
The First Amendment’s “protection afforded is to the communication, to its
source and to its recipients both.” Va. State Bd. of Pharmacy v. Va. Citizens
Consumer Council, Inc., 425 U.S. 748, 756 (1976) (citing many cases); Packingham
v. North Carolina, 582 U.S. 98, 104 (2017) (recognizing the right to “speak and
11
listen, and then … speak and listen once more,” as a “fundamental principle of the
First Amendment”); Red Lion Broad. Co. v. F.C.C., 395 U.S. 367, 390 (1969). A
restriction on President Trump’s speech inflicts a reciprocal injury on the rights of
over 100 million Americans who listen to him, irrespective of their political beliefs.
This right of listeners to receive President Trump’s message has its “fullest
and most urgent application precisely to the conduct of campaigns for political
office,” especially for the Presidency. Susan B. Anthony List, 573 U.S. at 162. Ford
emphasized that, if Congressman Ford were silenced, “reciprocally, his constituents
will have no access to the views of their congressman on this issue of undoubted
public importance.” 830 F.2d at 601. Likewise, Brown stated that “[t]he urgency of
a campaign … may well require that a candidate, for the benefit of the electorate as
well as himself, have absolute freedom to discuss his qualifications….” 218 F.3d at
430.
Indeed, the Gag Order has been widely criticized for restricting the rights of
voters to hear President Trump’s uncensored message. See, e.g., Besty McCaughey,
Why the ACLU Is Going To Bat For Donald Trump, N.Y. POST (Nov. 1, 2023) (the
Gag Order violates “the public’s right to hear Trump’s views so it can decide
‘whether he deserves to be elected again’”); The Editors, The Trump Gag Order
Goes Too Far, NATIONAL REVIEW (Oct. 18, 2023) (“Not only is free speech his right
— it is the right of voters in the forthcoming primary and general elections to hear
12
it before choosing the nation’s next president.”); Andrew McCarthy, The Trump Gag
Order Is Judicial Overkill, NATIONAL REVIEW (Oct. 17, 2021) (emphasizing “the
court’s duty to minimize the intrusion of judicial process on the electoral
process….”); Isaac Arnsdorf et al., In Trump Cases, Experts Say Defendant’s
Rhetoric Will Be Hard To Police, WASHINGTON POST (Aug. 23, 2023) (the judge
should “permit voters access to the defendant’s statements as they decide how to cast
their ballots…”); Jason Willick, Go Ahead, Silence Donald Trump, WASHINGTON
POST (Sept. 19, 2023).
Though the issue was raised repeatedly, A159-60, A165, A178; A47, A62-63,
the district court gave the First Amendment rights of President Trump’s audiences
no meaningful consideration. The Gag Order does not mention them, see A1-3, and
the district court declined to consider them when President Trump raised them, e.g.,
A47, A62-63. That is reversible error.
5. The Gag Order imposes a classic heckler’s veto.
The Gag Order’s justification is to protect trial participants from supposed,
hypothetical “threats” and “harassment” by independent third parties. A2-3; see also
A44, A47-48, A62-63, A65, A71, A82. The court did not hold, and the prosecution
does not contend, that any of President Trump’s public statements constitute threats,
“fighting words,” or incitement to imminent lawless action. See A13; see also
Counterman v. Colorado, 600 U.S. 66, 73 (2023); Brandenburg v. Ohio, 395 U.S.
13
444, 447 (1969). Thus, the Gag Order restricts President Trump’s speech based
solely upon the anticipated reaction of unidentified, independent third parties.
This is a classic heckler’s veto, which the First Amendment categorically
forbids. Under the First Amendment, public speakers “are not chargeable with the
danger” that their audiences “might react with disorder or violence.” Brown v.
Louisiana, 383 U.S. 131, 133 n.1 (1966) (opinion of Fortas, J.). “[T]he compelling
answer is that constitutional rights may not be denied simply because of hostility to
their assertion or exercise.” Cox v. Louisiana, 379 U.S. 536, 551 (1965) (cleaned
up) (citing Edwards v. South Carolina, 372 U.S. 229, 237 (1963); and Watson v. City
of Memphis, 373 U.S. 526, 535 (1963)); see also, e.g., Forsyth County v. Nationalist
Movement, 505 U.S. 123, 134-35 (1992) (“Speech cannot be … punished or banned,
simply because it might offend a hostile mob.”); Collin v. Chicago Park Dist., 460
F.2d 746, 754 (7th Cir. 1972).
“The Government may not insulate a law from charges of viewpoint
discrimination by tying censorship to the reaction of the speaker’s audience.” Matal
v. Tam, 582 U.S. 218, 250 (2017) (Kennedy, J., concurring in part and concurring in
the judgment). “Indeed, a speech burden based on audience reactions is simply
government hostility and intervention in a different guise.” Id. Yet that is what the
Gag Order does.
14
6. The Gag Order shields public figures from public criticism.
Further, the Gag Order silences public criticism of quintessential public
figures—speech entitled to the highest level of First Amendment protection. The
Special Prosecutor and his team are high-level government officials who volunteered
for highest-profile criminal case in modern history, and thus “thrust” themselves
“into the vortex of this public issue.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 352
(1974). Likewise, the “witnesses” who supposedly might be “intimidated” by
President Trump’s speech are former officials from the highest echelons of
government who have repeatedly attacked President Trump and his fitness for the
Presidency in public statements, national media interviews, and books.
Any government official with “such apparent importance that the public has
an independent interest in the qualifications and performance of the person who
holds it” is a public figure. Rosenblatt v. Baer, 383 U.S. 75, 86 (1966). Every
prosecutor on the case, and every potential witness identified by the prosecution,
easily clears this bar. See, e.g., Crane v. Ariz. Republic, 972 F.2d 1511, 1525, 1524-
25 (9th Cir. 1992) (prosecutor and head of federal task force are public officials);
ACLU, Inc. v. Zeh, 864 S.E.2d 422, 437-38 (Ga. 2021) (county public defender for
misdemeanors is a public official); Diesen v. Hessburg, 455 N.W.2d 446, 450 (Minn.
1990) (county attorney is public official). The First Amendment does not tolerate an
order shielding such public figures from criticism.
15
Particularly offensive is the Gag Order’s one-sided nature. It prevents
President Trump from “targeting” senior public figures—such as Vice President
Pence and Attorney General Barr—who routinely attack him and his fitness for the
Presidency. And it prevents him from responding to the Special Prosecutor, who has
made inflammatory public comments about President Trump, and whose team
evidently leaks confidential details to the press. A290-291 n.6. The government
“has no such authority to license one side of a debate to fight freestyle, while
requiring the other to follow Marquis of Queensberry rules.” R.A.V. v. City of St.
Paul, 505 U.S. 377, 391–92 (1992).
7. The Gag Order reflects forbidden viewpoint discrimination.
By forbidding speech that “target[s]” certain individuals, the Gag Order
prohibits only (vaguely defined) negative speech about them. See infra, Part I.C. In
Matal v. Tam, the Supreme Court held that prohibiting only negative or
“disparaging” speech constitutes forbidden viewpoint discrimination. 582 U.S. 218,
243 (2017) (plurality opinion). Such a prohibition “constitutes viewpoint
discrimination—a form of speech suppression so potent that it must be subject to
rigorous constitutional scrutiny.” Id. at 247 (Kennedy, J., concurring in part and
concurring in the judgment). To prohibit “disparaging” speech “reflects the
Government’s disapproval of a subset of messages it finds offensive. This is the
16
essence of viewpoint discrimination.” Id. at 249; see also R.A.V., 505 U.S. at 391-
92. The Gag Order violates these principles.
B. The Gag Order Cannot Withstand Any Level of Scrutiny.
1. The prosecution did not establish any compelling interest.
First, the prosecution made no showing that suppressing President Trump’s
speech would serve any important or compelling interest. The party seeking to
justify a gag order regarding pending criminal proceedings bears “the heavy burden
of demonstrating, in advance of trial, that without prior restraint a fair trial will be
denied.” Nebraska Press Ass’n, 427 U.S. at 569. This “heavy burden,” id., is an
evidentiary burden: Where “the record is lacking in evidence to support” the gag
order, it will not be upheld. Id. at 565; see also id. at 563; Landmark Commc’ns,
435 U.S. at 843 (holding that “actual facts” are necessary to support a gag order).
By the time the Gag Order was entered, the case had been pending for almost
three months, and President Trump had often spoken about it. The prosecution
provided seventeen examples of public statements by President Trump between
August 2 and September 26, 2023, that it considered objectionable. A140-46; A190-
91. However, it did not produce any evidence that any prosecutor, witness, or court
staffer experienced “threats” or “harassment” after President Trump’s speech.
Likewise, it did not produce any evidence that any witness or prosecutor felt
threatened or intimidated by President Trump’s speech—however subjectively—
17
during three months of President Trump’s public commentary on the case. See
A140-46; A190-91.
Instead, the prosecution relied on a handful of instances almost three years
old. A137-39. When asked about the dearth of current evidence, the prosecution
admitted, “of course this prejudice is speculative.” A65. A prior restraint cannot be
based on speculation. Nebraska Press Ass’n, 427 U.S. at 569. Even if unruly actions
by President Trump’s listeners could be considered—which they cannot, supra Part
I.A.5—the prosecution failed to submit evidence to establish them.
2. The Gag Order is not narrowly tailored.
Moreover, the Gag Order is sweepingly overbroad, and thus it cannot survive
any tailoring analysis.
First, the Gag Order did not adequately consider less restrictive alternatives.
See Nebraska Press Ass’n, 427 U.S. at 562. The prosecution presented no evidence
on this issue, and the district court’s “findings” consisted of a bare, one-sentence
recital. A1-2. As in Nebraska Press Association, “[t]here is no finding that
alternative measures would not have protected [the defendant’s] rights …. [T]he
record is lacking in evidence to support such a finding.” 427 U.S. at 565.
This deficiency is starkest with respect to the most obvious alternative—
delaying the trial date until after the Presidential election. “[W]here there is a
reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the
18
judge should continue the case until the threat abates….” Sheppard, 384 U.S. at 363.
Yet the district court categorically refused to consider this alternative. A23-24; see
also A69, A82.
Furthermore, the Gag Order fails any tailoring analysis because it sweeps in
vast amounts of First Amendment-protected speech that pose no plausible threat to
the administration of justice. The entire Gag Order is overbroad because it is based
on an impermissible heckler’s veto theory. Supra, Part I.A.5. It prohibits statements
criticizing major public figures who routinely attack President Trump, such as Mr.
Barr and Mr. Pence, who deliberately invite debate with him. Supra, Part I.A.6. The
Gag Order forbids public criticism of the Special Prosecutor, even though “[t]he
operations of the courts and the judicial conduct of judges are matters of utmost
public concern,” and such speech “guards against the miscarriage of justice by
subjecting … prosecutors … to extensive public scrutiny and criticism.” Landmark
Commc’ns, 435 U.S. at 839 (quoting Sheppard, 384 U.S. at 350). The Gag Order
prohibits all statements that “target” any persons, which could include any statement
that refers to them in any way. See infra, Part I.C. This is the antithesis of narrow
tailoring.
C. The Gag Order Is Incurably Vague.
“[S]tandards of permissible statutory vagueness are strict in the area of free
expression,” and the Supreme Court “will not presume that the [restriction] curtails
19
constitutionally protected activity as little as possible.” NAACP v. Button, 371 U.S.
415, 432 (1963); see also Hynes v. Mayor & Council of Borough of Oradell, 425
U.S. 610, 620 (1976); Buckley v. Valeo, 424 U.S. 1, 77 (1976) (per curiam).
The Gag Order fails to meet those exacting standards. For example, its key
operative word, “target,” A3, could mean “a mark to shoot at,” “something or
someone marked for attack,” “a goal to be achieved,” “an object of ridicule or
criticism,” or “something or someone to be affected by an action or development,”
among other meanings. Target, Merriam-Webster Online, at https://www.merriam-
webster.com/dictionary/target. Thus, the Gag Order might prohibit (1) any statement
that refers to a person in any way; (2) only statements that “attack” a person; (3) only
statements that “ridicule” or “criticize” someone; or (4) any statement that “affects”
a person in any way, even without directly naming them. See id. The Supreme Court
has rejected far more precise language. See, e.g., Nebraska Press Ass’n, 427 U.S. at
568 (holding that the word “implicative” in a pretrial gag order was
unconstitutionally vague).
In denying President Trump’s motion for stay pending appeal, the district
court held that any or all these meanings might apply: “[D]epending on their context,
statements matching each of the definitions Defendant proffers for the term ‘target’
could pose such risks.” A298. The statements that impermissibly “target” people,
the district court explained, are those “that could result in a ‘significant and
20
immediate risk’ to ‘the integrity of these proceedings.’” A298. Thus, the Gag Order
boils down to an order directing President Trump not to say anything that presents
“a significant and immediate risk to the integrity of these proceedings.” A298.
This “clarification” makes the vagueness even worse. A gag order cannot
simply command a party to “obey the law” and comply with a vague, potentially
subjective legal standard. See, e.g., Burton v. City of Belle Glade, 178 F.3d 1175,
1201 (11th Cir. 1999). The threat of “arbitrary and discriminatory application” in
such a case is palpable. Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972).
The Gag Order suffers from other vagueness problems as well. For example,
it prohibits statements that “target … any reasonably foreseeable witness or the
substance of their testimony.” A3. The case involves millions of pages of discovery,
and the universe of “reasonably foreseeable witness[es]” is unacceptably broad and
indeterminate. A3. Even worse is the restriction on statements targeting “the
substance of their testimony,” a category that is completely unknowable months in
advance of a potential trial. A3. Such restrictions create the risk of impermissible
enforcement-by-hindsight, i.e., “ad hoc and subjective” application. Grayned, 408
U.S. at 109.
III. The Remaining Equitable Factors Favor a Stay.
The remaining equitable factors favor a stay pending appeal.
21
Irreparable Injury. “The loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury.” Elrod, 427
U.S. at 373. President Trump’s showing of likelihood of success necessarily
establishes irreparable injury. Phelps–Roper v. Nixon, 545 F.3d 685, 690 (8th Cir.
2008). Indeed, the irreparable injuries to President Trump and his millions of
listeners thus began at once. They are immediate and ongoing.
Harm to the Government. The balancing of harms and the public interest
“merge when the Government is the opposing party.” Nken, 556 U.S. at 435. Here,
the potential harm to the government is minimal, as the prosecution admits that “of
course this prejudice is speculative.” A65. The Government suffers no cognizable
injury from respecting the First Amendment rights of President Trump and over 100
million Americans.
Public Interest. This factor is easily satisfied. “Injunctions protecting First
Amendment freedoms are always in the public interest.” Texans for Free Enter. v.
Tex. Ethics Comm’n, 732 F.3d 535, 539 (5th Cir. 2013). And “it is always in the
public interest to prevent violation of a party’s constitutional rights.” Deja Vu of
Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cnty., 274 F.3d 377, 400
(6th Cir. 2001).
22
CONCLUSION
The Court should stay the Gag Order pending appeal. In addition, President
Trump respectfully requests that the Court enter a temporary administrative stay
pending resolution of this motion and issue its ruling by November 10, 2023. If the
Court denies this motion, President Trump requests that the Court extend its
administrative stay for seven days to allow him to seek relief from the U.S. Supreme
Court.
Dated: November 2, 2023 Respectfully Submitted,
LAURO & SINGER JAMES OTIS LAW GROUP, LLC
John F. Lauro, Esq. /s/ D. John Sauer

D.C. Circuit Bar No. 64896 D. John Sauer
jlauro@laurosinger.com William O. Scharf
400 N. Tampa St., 15th Floor Michael E. Talent
Tampa, FL 33602 13321 N. Outer Forty Road, Suite 300
(813) 222-8990 St. Louis, Missouri 63017
(314) 562-0031
John.Sauer@james-otis.com
Attorneys for President Donald Trump
23
CERTIFICATE OF SERVICE
I hereby certify that, on November 2, 2023, I caused a true and correct copy
of the foregoing to be filed by the Court’s electronic filing system, to be served by
operation of the Court’s electronic filing system on counsel for all parties who have
entered in the case.
/s/ D. John Sauer
24
CERTIFICATE OF COMPLIANCE
This document complies with the type-volume limit of Federal Rule of
Appellate Procedure 27(d)(2)(A) because it contains 5,152 words, excluding those
portions pursuant to Federal Rule of Appellate Procedure 32(f), according to
Microsoft Word.
This document complies with the typeface requirements of Federal Rules of
Appellate Procedure 27(d)(1)(E) and 32(a)(5) and the type-style requirements of
Federal Rules of Appellate Procedure 27(d)(1)(E) and 32(a)(6) because it was
prepared in a proportionally spaced typeface in Microsoft Word utilizing 14-point
Times New Roman font.
/s/ D. John Sauer

D. John Sauer
25
CERTIFICATE OF PARTIES AND AMICI CURIAE
The parties in the district court include the United States of America and
President Donald J. Trump. The district court denied leave to file to proposed amici
curiae.
/s/ D. John Sauer
26
DISCLOSURE STATEMENT
No Disclosure Statement under Federal Rule of Appellate Procedure 26.1 or
under Circuit Rule 26.1 is indicated, as Defendant is not a corporation or similar
entity.
/s/ D. John Sauer
27

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USCA Case #23-3190 Document #2025149 Filed: 11/02/2023 Page 1 of 35

ORAL ARGUMENT NOT YET SCHEDULED

IN THE UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

On Appeal from the United States District Court

DEFENDANT-APPELLANT PRESIDENT DONALD J. TRUMP’S

RELIEF REQUESTED BY: November 10, 2023

STATEMENT OF THE CASE……………………………………………………..2

I. President Trump Is Likely To Prevail on Appeal……………………………8

A. The Gag Order Is Subject to the Most Exacting Scrutiny…………………...8

1. A gag order requires a “clear and present danger to the

2. Prior restraints are subject to the most exacting scrutiny……………..9

3. Political campaigns require the First Amendment’s “fullest and

4. The Gag Order violates the rights of tens of millions of Americans

5. The Gag Order imposes a classic heckler’s veto……………………13

6. The Gag Order shields public figures from public criticism………..15

7. The Gag Order reflects forbidden viewpoint discrimination………..16

B. The Gag Order Cannot Withstand Any Level of Scrutiny…………………17

1. The prosecution did not establish any compelling interest………….17

2. The Gag Order is not narrowly tailored……………………………..18

C. The Gag Order Is Incurably Vague…………………………………………19

III. The Remaining Equitable Factors Favor a Stay…………………………...21

CERTIFICATE OF PARTIES AND AMICI CURIAE…………………………….26

Burton v. City of Belle Glade,

Cohen v. Beneficial Indus. Loan Corp.,

Collin v. Chicago Park Dist.,

Crane v. Ariz. Republic,

Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cnty.,

Edwards v. South Carolina,

Forsyth County v. Nationalist Movement,

Gentile v. State Bar of Nevada,

Gertz v. Robert Welch, Inc.,

Grayned v. City of Rockford,

Hynes v. Mayor & Council of Borough of Oradell,

Landmark Commc'ns, Inc. v. Virginia,

McIntyre v. Ohio Elec. Comm’n,

Monitor Patriot Co. v. Roy,

Nebraska Press Ass'n v. Stuart,

Packingham v. North Carolina,

R.A.V. v. City of St. Paul,

Red Lion Broad. Co. v. F.C.C.,

Smith v. Daily Mail Pub. Co.,

Susan B. Anthony List v. Driehaus,

Texans for Free Enter. v. Tex. Ethics Comm’n,

United States v. Brown,

United States v. Ford,

Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc.,

Watson v. City of Memphis, 373 U.S. 526 (1963) ....................................................14

Gag Order………………Opinion and Order in United States v. Trump, No. 1:23-

the prosecution…………the United States of America

No court in American history has imposed a gag order on a criminal defendant

Order”), muzzling President Trump’s core political speech during an historic

Given the Gag Order’s extraordinary nature, one would expect an

prosecution”) submitted no evidence of any actual or imminent threat to the

the prosecution admitted, “of course this prejudice is speculative.”