United States v. Donald Trump (PUBLIC OPINION)

 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued November 20, 2023           Decided December 8, 2023
                                  Reissued December 20, 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.

     Gene P. Hamilton and Judd E. Stone, II were on the brief
for amicus curiae America First Legal Foundation in support
of appellant.
                               2

    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
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
                                3

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 

.

                                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
                                4

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
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, 

, 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

1
  https://www.c-span.org/video/?506975-1/president-trump-stateme
nt-2020-election-results.
                               5

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 “commenting on most things publicly” because it was
“the safest thing to do” after then-President Trump tweeted
about him. Special Counsel Mot. 3 & Ex. 1 at 42. And after
then-President Trump criticized a governmental office for
certifying the election, a member of that office had to evacuate
his home when one of the then-President’s supporters posted
the official’s address online. Special Counsel Mot. 3 & Ex. 1
at 3–4, 11.

     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.
                                 6

     The then-President and his campaign also allegedly
singled out private individuals. Indictment ¶¶ 21, 31; see 

. 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
    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[, 

(1966),] a ‘carnival atmosphere’ of unchecked publicity and
trial by media rather than our constitutionally established
system of trial by impartial jury.” 

 71:11–16. To that end,
the district court told both parties “to take special care in [their]
                               7

public statements about this case[,]” adding that it would “take
whatever measures are necessary to safeguard the integrity of
these proceedings.” 

 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-
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).
                               8

                               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
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. 

     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]
                                9

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

), 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
    (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
                                  10

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
(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. 

 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

2
    https://perma.cc/VRG2-D6SZ.
                               11

courts[.]” 

. 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, 

, 521–522 (1988);
Cincinnati Ins. Co. v. All Plumbing, Inc., 

(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, 

 (D.C. Cir. 2010) (citing Will v. Hallock,

 (2006)). In addition, in Mohawk Industries,
Inc. v. Carpenter, 

 (2009), the Supreme Court
underscored that “the class of collaterally appealable orders
must remain ‘narrow and selective in its membership.’” 

 at
113 (quoting Will, 

). 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–
                                12

350. “[T]he criminal justice system exists in a larger context
of a government ultimately of the people, who wish to be
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,

 (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, 

 (5th Cir. 2000); In re Rafferty, 

 (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,

 (2003) (“Many persons, rather than
undertake the considerable burden * * * of vindicating their
rights through case-by-case litigation, will choose simply to
                                 13

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

, 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, 

 (1974)).

     For those reasons, we hold that we have jurisdiction under
the collateral-order doctrine. See In re Stone, 

,
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, 

 (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,

 (D.C. Cir. 1999); United States v. Bronstein,

 (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, 

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

 (1948)). On our review,

3
  Because the Order is appealable under the collateral-order doctrine,
we need not address whether the Order is also an appealable
injunction under 

(a)(1), or whether to treat this
appeal as a petition for writ of mandamus. See Trump Br. 4–6.
                               14

this court can “affirm, modify, vacate, set aside or reverse” the
district court’s Order. 

.

                               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, 

 (2011) (quoting New York Times Co. v. Sullivan,

 (1964)). “That is because ‘speech
concerning public affairs is more than self-expression; it is the
essence of self-government.’” 

 (quoting Garrison v.
Louisiana, 

, 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
v. Alabama, 

, 218–219 (1966). “Whatever
differences may exist about interpretations of the First
Amendment, there is practically universal agreement that a
                                15

major purpose of that Amendment was to protect the free
discussion of governmental affairs.” 

 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, 

, 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., 

 (1989) (quoting Monitor
Patriot Co. v. Roy, 

 (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, 

 (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.” 

     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
“guards against the miscarriage of justice by subjecting the
police, prosecutors, and judicial processes to extensive public
scrutiny and criticism.” Sheppard, 

. “The
judicial system, and in particular our criminal justice courts,
play a vital part in a democratic state, and the public has a
                              16

legitimate interest in their operations.” Gentile, 

.

     “[T]o provide adequate ‘breathing space’” for robust
public debate and participation, the First Amendment generally
shields “insulting, and even outrageous, speech[.]” Snyder,

 (quoting Boos v. Barry, 

(1988)); cf. Virginia v. Black, 

 (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, 

, 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, 

, 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).

                               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, 

 (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
                               17

before them in a court proceeding.” Gentile, 

;
see Irvin v. Dowd, 

 (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, 

, 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, 

 (1965). The public has its own compelling interest “in
fair trials designed to end in just judgments.” Wade v. Hunter,

 (1949); see Gentile, 

;
Brown, 

 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, 

,
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, 

 (1946). That standard requires courts to navigate
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, 

 (1978); see Bridges v. California, 

, 260–
263 (1941).

     In fact, court orders restraining speech about an ongoing
criminal proceeding are presumptively unconstitutional.
Nebraska Press Ass’n v. Stuart, 

 (1976). In
this context, prior restraints can be imposed only if narrowly
tailored to redress sufficiently serious threats to the criminal
                                18

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, 

 (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, 

 (1974). As part of that duty, courts
must “prevent the prejudice” to the trial process “at its
inception.” Sheppard, 

; see Nebraska Press,

 (The cure for prejudice to the trial “lies in those
remedial measures that will prevent the prejudice at its
inception.”) (quoting Sheppard, 

). That is
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, 

; see Nebraska Press, 

.

     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, 

(Black, J., dissenting)). Due process demands that “the
                                19

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.” 

 at 351
(quoting Patterson v. Colorado ex rel. Attorney General, 

 (1907)); see Geders v. United States, 

, 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, 

 (citing Wood v. Georgia, 

 (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”).

     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, 

, 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, 

, 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, 

. Courts “must” be
proactive, 

 and, when warranted, “proscribe[] extrajudicial
statements by any lawyer, party, witness, or court official”
engaging in “prejudicial” communications, 

. See 

 (“[T]he court should have made some effort to control
the release of leads, information, and gossip to the press by
                                20

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, 

 (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.” 

.
The state bar initiated disciplinary proceedings against the
lawyer for violating a state bar rule prohibiting an attorney
from publicly making certain extrajudicial statements. 

.

     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, 

. 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.”

; see 

 at 1072–1076. One aspect of the Court’s
reasoning focused on lawyers’ roles as “officers of the court,”

 at 1074 (quoting Nebraska Press, 

 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–
                                21

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

; Sacher v. United States, 

 (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

     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, 

 (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, 

 (1987). More specifically,

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
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).
                                  22

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[.]” 

(c)(1)(B).
Such conditions commonly include measures that burden
criminal defendants’ ability to act, associate, and speak. See

 § 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
(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.” 

(c)(1)(B)(v); cf. United States v.
Perazza-Mercado, 

, 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

5
    https://perma.cc/V6VH-Q3TV.
6
    https://perma.cc/XHQ3-4UP7.
                                23

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
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, 

; Gentile, 501 U.S. at 1075–
1076.
                               24

     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.

                                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., 

, 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, 

 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, 

; Wade, 

.
                                25

     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, 

;
see 

 at 842–843. Here, the relevant danger is the
“substantive evil of unfair administration of justice[,]”
Landmark Commc’ns, 

 (quoting Bridges, 

), and impairment of “the unhindered and
untrammeled functioning of our courts [that] is part of the very
foundation of our constitutional democracy[,]” Cox, 

.

     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. 

. 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
                                26

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-
restricting Order, see Trump 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, 

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

, 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, 

(b), harassing
those assisting in a prosecution, 

 § 1512(d)(4), and unlawful
threats, see, e.g., id. § 875; id. § 1503(a); 

(misdemeanor threats); 

 § 22-1810 (felony threats); see also
Counterman, 

; Elonis v. United States, 

, 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.
                                27

     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
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, 

 (quoting Pennekamp, 

 (Frankfurter,
J., concurring)); see Gentile, 

 (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[,]” 

 (emphasis added), and the Court explicitly noted
                                28

that limiting the statute at issue to trial participants “might well
save the statute[,]” 

 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. 

 (emphasis
added); see 

 (“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 

 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, 

 (quoting
Pennekamp, 

 (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, 

, 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,

, 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, 

, 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.
                               29

                               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.
                                  30

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
repeatedly labeled the trial judge as “biased,” a “fraud[,]” and
a “hack[,]” Special Counsel Mot. 6–7, and has called the

9
    https://perma.cc/ZK9H-8SKS.
10
     https://perma.cc/9DFD-A7QP.
                                   31

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.
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-


11
     https://perma.cc/F769-Z49A.
                               32

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 “commenting on most things publicly” because it
was “the safest thing to do” after then-President Trump tweeted
about him. Special Counsel Mot. 3 & Ex. 1 at 42. And a local
election official had to evacuate his home after then-President
Trump criticized his office and a supporter posted his address
online. Special Counsel Mot. 3 & Ex. 1 at 3–4, 11.

     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. 

     Others too have had their lives turned upside down after
coming within Mr. Trump’s verbal sights. For example, a
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
                               33

“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.

                                   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.



12
     https://perma.cc/HC5Y-3XLT.
                               34

     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,

 (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.”

. 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, 

(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, 

 (1989) (discussing the “common practice” of “instruct[ing]
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).
                               35

     The concern with defendants’ influences on witnesses is
so significant that Congress has expressly authorized courts to
prevent defendants from communicating with witnesses. See

(c)(1)(B)(v); see generally Nixon, 

 (“[T]he public * * * has a right to every man’s
evidence[.]”) (quoting United States v. Bryan, 

 (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, 

 (restrictions on witnesses observing other witnesses’
testimony mean nothing if “the full verbatim testimony [is]
available to them in the press”); Estes, 

.

     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,” 

 33:20–23, or that the message will otherwise likely
reach the witness. In each of these scenarios, the defendant’s
                               36

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, 

, 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
undermine or destroy the efficacy of the criminal justice
system.” Gentile, 

 (quotation marks omitted);
see Sheppard, 

. 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, 

. Messages designed to generate alarm and dread, and to
                                37

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.

     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
                              38

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.” 

.

    Second, Mr. Trump objects that holding him responsible
for his listeners’ responses to his speech unconstitutionally
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, 

, 134–135
(1992) (emphasis added), or because its audience might
                              39

express “hostility to” the message, Cox, 

. 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, 

, 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, 

, 448–449 (1969) (striking down law that failed to
distinguish “mere advocacy” from “incitement to imminent
lawless action”).

     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
                              40

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
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
                                  41

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

     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, 

 (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
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.
                                42

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,

 (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, 

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

, 446 (2015) (“[P]ublic perception of judicial
integrity is ‘a state interest of the highest order.’”) (quoting
Caperton v. A.T. Massey Coal Co., Inc., 

(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, 

 (same).
                                43

     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.” 

 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,
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.”).
                                  44

     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.

     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 the 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


15
     https://perma.cc/K3UM-SS92 (displaying 6.51 million followers).
                               45

(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–
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, 

, 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, 

 (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. 

. But no good deed

16
     https://perma.cc/HC5Y-3XLT.
                               46

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. 

That forced the district court to partially reimpose the gag
order. 

 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
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, 

 (quoting
Bridges, 

); see Gentile, 

.



17
     https://perma.cc/P5HK-7LAG.
                               47

    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
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.
                                48

                                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”).

    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
                              49

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,
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, 

. 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.
                                   50

    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,
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, 

,
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




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.
                                51

                                 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
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, 

 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.
                                52

    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
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
                               53

the danger posed to the proceeding is lower. See Landmark
Commc’ns, 

.

     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, 

(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,
                                 54

379 U.S. at 583 (Black, J., dissenting)). After all, “[l]egal trials
are not like elections, to be won through the use of the meeting-
hall, the radio, and the newspaper.” Id. at 350 (quoting
Bridges, 

).

     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, 

. 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, 

. 19

     When the Supreme Court has spoken of courts’ authority
to restrict trial participants’ speech, it has framed those
restrictions in the context of speech about the case in which the

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, 

(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, 

 & 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”).
                               55

restrictions are imposed. See Sheppard, 

(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, 

 (acknowledging the State’s legitimate interest in
prohibiting attorney “speech having a substantial likelihood of
materially prejudicing that proceeding”); 

 (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
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
                              56

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
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
                               57

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, 

, 1106–1107 (D.C. Cir.
2017) (quoting Rose v. Locke, 

 (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, 

 (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, 

(1989) (“[P]erfect clarity and precise guidance have never been
required even of regulations that restrict expressive activity.”);
Grayned v. City of Rockford, 

 (1972)
(“Condemned to the use of words, we can never expect
mathematical certainty from our language.”).

     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
                               58

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
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, 

.

    At the same time, speech about the criminal justice system
is vital. The courts are the people’s Third Branch of
                               59

government and, especially in criminal cases, “play a vital part
in a democratic state[.]” Gentile, 

. As a result,
the public has a strong and “legitimate interest in their
operations.” 

 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, 

(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, 

.

     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.

     Likewise, the courts and the judges who sit on them enjoy
“no greater immunity from criticism than other persons or
institutions.” Landmark Commc’ns, 

 (quoting
Bridges, 

 (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.
                               60

     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, 

 (quoting Bridges, 

(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
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, 

 (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




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.
                                  61

immaterial risk to the criminal proceedings. 

 (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
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

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, 

. 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.
                               62

knowledge of a high likelihood of interference, we make clear
that Mr. Trump must have “done more than make a bad
mistake.” See Counterman, 

. He must fairly bear
responsibility for the known consequences of his actions. See
id.; see also 

 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
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, 

. But that tradeoff
                              63

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, 

. Furthermore, the relevant mental
states can commonly be proved with objective evidence. See
Washington v. Davis, 

 (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,

 (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
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.
                               64

                               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,
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 

. 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
                              65

politically motivated or that he is innocent of the charges
against him. See 

     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.