Trump Gag Order Appeal Expedited, Oral Argument Set for Nov. 20; Gag Order Stayed for Now

"The purpose of this administrative stay is to give the court sufficient opportunity to consider the emergency motion for a stay pending appeal and should not be construed in any way as a ruling on the merits of that motion."

BREAKING: The Trump gag order in DC is on hold. Appeals court panel has temporarily stayed it and scheduled a Nov. 20 oral argument. The panel:

Millett (Obama)
Pillard (Obama)
Garcia (Biden) pic.twitter.com/egJGonwsOG

— Kyle Cheney (@kyledcheney) November 3, 2023

Comments

[Rev. Arthur L. Kirkland]

In related news, a California trial judge is reported to have found disgraced former conservative legal academic (former law professor, still conservative) John Eastman to be culpable for ethical breaches with respect to his un-American activities on behalf of former Pres. Donald Trump.

This trial, which could result in disbarment, is distinct from the criminal trial in which Mr. Eastman is among the defendants who have not yet admitted guilt.

I do not expect Prof. Volokh to comment on John Eastman (although there was a time when the Volokh Conspiracy couldn't say enough nice things about Eastman) unless he can find a transgender, gay, lesbian, Muslim, drag queen, or white grievance angle to the story.

[Krayt]

Well, you do often complain if anything big were happening VC seems curiously silent on, as opposed to the minutia from obscure colleges in usual articles.

Well, here is one, a judge’s order to shut up, in the context of a trial, but also in the context of an election and in the context of quite reasonable claims this is a political prosecution.

[SRG2]

Trump is not gagged from electioneering.

But I understand - there's a Trump Exception for everything.

[JesseAz]

Youre even dumb on this side of the site. Trump is absolutely barred from many avenues of defense against political legal attacks against him. He can't speak of many of the actions in these courts, such as the clerk in violation of ethics rules for donating to democrats passing notes to the judge constantly, to statements about Jack Smith. In the latter Trump wouldn't even be able to bring up Smiths history of being rebuked by appeals courts such as his 0-8 loss at the USSC. The orders stop him from discussing those things. Despite it being known and factual. But you're fine with that.

[Nige]

A clerk. Passing notes to the judge.

[Rev. Arthur L. Kirkland]

A clerk. Passing notes to the judge.

They don't get to be Trump supporters with sound judgment, adequate education, strong persuasion skills, professional credentials and experience, or admirable character.

[SRG2]

That still doesn't constitute being barred from electioneering.

Of course, as you believe every wild accusation Trump makes, and think he is definitionally innocent, naturally you support him in disregard of actual circumstances.

Perhaps you also think that even if he is guilty he shouldn't be tried while he's campaigning, and of course, not while he's president - so he can pardon himself, conceivably - because you too believe in the Trump Exception.

[Lee Moore]

He is definitionally innocent, until he's found guilty.

[Stephen Lathrop]

Nope. Presumptively innocent. Maybe not much difference, but definitions are not normally regarded as routinely rebuttable.

[myself]

Trump is absolutely barred from many avenues of defense against political legal attacks against him.

He's allowed to call it rigged and politically motivated, he's just not allowed to publicly attack potential witnesses and members of the court because that obviously jeopardizes prospects for a fair trial.

He can’t speak of many of the actions in these courts, such as the clerk in violation of ethics rules for donating to democrats passing notes to the judge constantly,

He absolutely can speak about those actions, in court.

And the source for those donation is highly problematic. The Twitter account who claimed to have found the donations (unverified) also claimed to have filed an official complaint with the Judge, a claim the Judge specifically refuted.

[Lee Moore]

because that obviously jeopardizes prospects for a fair trial

The right to a fair trial belongs to the accused. Ensuring the prosecutor gets a fair trial is not a thing. The idea that things the accused might say out of court jeopardises a "fair trial" is quite ridiculous.

[myself]

Ok, "fair trial" was the wrong phrasing to use.

But it's obviously a pretty big deal if the defendant, who has millions of very loyal followers, is allowed to publicly criticize and even make veiled threats towards witnesses, with the full knowledge that such actions usually lead to death threats towards his targets.

[Michael P]

And Joe Biden should similarly be prohibited from using his soapbox to poison the potential jury pool against Donald Trump, especially by using coded language like "ultra NAGA Republicans", an I right?

[Nige]

I'm sure the request for such a gag order is being composed as we speak.

[David Nieporent]

What does any of that have to do with electioneering? "Trump can't make borderline-psychotic posts about court personnel" does not mean that he can't talk about his plans to raise taxes and round up dark skinned people and sell out our allies and gush about how great foreign dictators are.

And what "ethics rules" exist only in your head?

Oh, and for the record, when an appellate court reverses a lower court on a question of law, it is implicitly rebuking the judge, not the prosecutor. Nobody argued or held that Smith did anything wrong.

[David Nieporent]

Nevermind; I found a story about the supposed ethics violations, so at least I know what the reference is. I can't get the site that supposedly has the underlying evidence to load, though.

[Lee Moore]

What does any of that have to do with electioneering?

I should have thought that arguing that :

(1) the Republic could useful do with fewer hacky judges
(2) fewer hacky Attorney Generals, and
(3) fewer hacky Special Counsels appointed by said AGs

and that the achievement of this requires removing the current President who is responsible for the current excess of all three items, would fall well within the normal bounds of matters of interest to the electorate (whichever side of that argument you choose to take.)

But you're welcome to regard such issues as lèse-majesté if you prefer.

[Sarcastr0]

That's not electioneering, you dolt. It's whinging. Oh, like your post about judges is.

Following your leader, I guess.

[Lee Moore]

Judicial and executive branch appointments are now outside the realm of electioneering now ?
Have you been drinking ?

[Sarcastr0]

Whining about the system being so unfair to you is not electioneering, no.

Trump saying how he would change the system would be. But he and you are more into substanceless accusations.

[Nige]

He's promising, or threatening, to replace as many of them with people personally loyal to him, that's kind of changing the system. 'Show personal loyalty to me now or I'll replace you when I'm president.'

[Lee Moore]

He can’t replace federal judges, all he can do - if elected and if supported by the Senate - is fill judicial vacancies as and when they arise. And since judges get life tenure he can’t enforce loyalty in his judicial appointees. As we saw between 2017 and 2021. There are a few judges who see eye to eye with him but most of his appointees are regular Republicans, not even theoretically loyal to him.
But it seems strange to argue that sticking the DOJ with people who agree with him would be a novel move. Wingman Holder would be astonished.

PS Trump may inspire loyalty in voters but not amongst the class of people who are available for appointment. He has been relentlessly disloyal to his subordinates and after a while people get the message. You don’t offer loyalty to a leader who isn’t loyal to you.

[Sarcastr0]

Lee seems to have awoken from a coma, and doesn't know anything Trump posts on social media about judges, nor how the GOP and it's voters are currently loyal to Trump despite his crappiness.

[Nige]

'But it seems strange to argue that sticking the DOJ with people who agree with him would be a novel move.'

This is what Trump is saying. This is what you agree with if you vote for him.

[Ben of Houston]

Do you really think that calling this a prejudiced political prosecution isn't covered by this gag order?

They primary attacks against Trump are pointing to this. The gag order is preventing him from defending against his primary political opposition. How is that not transparently quashing political speech?

[SimonP]

None of your spurious claims about the prosecution or the election have any relevance to the gag order.

But it is odd that (as far as I can recall) Eugene hasn't ventured to comment on any of the gag order drama until Trump managed to get it stayed on appeal.

[Rev. Arthur L. Kirkland]

In fairness to the proprietor, no one expected him to comment unless and until (1) something favorable to Trump, Eastman, or Clark occurred; (2) someone used a vile racial slur that could be quoted with plausible deniability; or (3) a Muslim drag queen and transgender lesbian participated in the proceedings in a manner that constituted persecution of a white, straight, religious male conservative.

[Frank Drackman]

I'll give you this much, "Reverend", I mean "Coach".
You're certainly the authority in Disgraced Pubic Figures.
So what happens when a Foo-Bawl Coach gets convicted of a Crime? Do you have to turn in your Jock Strap and Whistle??

Frank

[BillyG]

Pitty the poor reverend. He's mentally ill. Actually believes this is about law and justice as opposed to the Democrats waging lawfare. Probably believes all the hoaxes the Democrats have ever said.

[Rev. Arthur L. Kirkland]

I'm mentally ill.

You're a deplorable, delusional bigot drawn to a white, male, disaffected right-wing blog.

Let's see which of us wins the culture war, clinger.

[David Nieporent]

(although there was a time when the Volokh Conspiracy couldn’t say enough nice things about Eastman)

As always, Kirkland is such a loser that he spends all his time nursing decades old grievances against VC posters. What was that "enough nice things" — two or three posts fifteen years ago?

[Rev. Arthur L. Kirkland]

Two of the Conspirators lauded Eastman's character and abilities and endorsed him for statewide public office.

It is impressive that you could type anything at all with your nose pressed so far up Prof. Volokh's ass.

When he is removed from the UCLA campus I guess I won't be able to label you a teacher's pet anymore.

[David Nieporent]

I must apologize to Kirkland: Eastland ran for office in 2010, so Kirkland is ranting and raving about two or three posts from thirteen years ago, not fifteen.

[David Nieporent]

And as far as I can tell, it's actually just two posts, consisting of the following:

https://volokh.com/2010/01/21/john-eastman-for-attorney-general/

John Eastman for Attorney General?
by David Bernstein on January 21, 2010 9:39 am
Looks like Chapman Law School dean John Eastman is running for the Republican nomination for California attorney general. It’s hard to believe that California voters would elect someone so competent and qualified, but good luck, John!

https://volokh.com/2010/04/29/prof-john-eastman-for-california-attorney-general/

Prof. John Eastman for California Attorney General

by Eugene Volokh on April 29, 2010 1:13 pm
I just contributed to Prof. John Eastman’s campaign for California Attorney General, and I urge others to do the same. John is extremely smart and accomplished — he has a Ph.D. in government, he clerked for Justice Clarence Thomas, he has written or cowritten over 20 law review articles, and he’s a law professor and law school dean. And he’s a solid and thoughtful conservative, who I think would make an excellent Attorney General. There are things I disagree with him on, of course, but that’s inevitable with any candidate; on balance, I’m sure he would do a first-rate job.

That's it. That's what Kirkland keeps talking about because he's so devoid of any actual legitimate non ad hominem arguments.

[Estragon]

My favorite part about this is the contrast. DB couldn’t just say something nice about Eastman, he had to throw in the dig about California. What a twerp. A George Mason donor should create a funded professorship for shitposting studies… he would be perfect.

[David Nieporent]

I mean, his comment about them was right: California voters didn't elect Eastman.

[Estragon]

Fair enough

[Rev. Arthur L. Kirkland]

Were their comments about Eastman — the un-American disgraced, shitcanned, indicted, soon-to-be disbarred Volokh Conspiracy dream boy — right, too?

[Dr. Ed 2]

FINALLY!!!! -- maybe even the left has realized that this Kangaroo Kort stuff has gone too far...

[Lee Moore]

Don't be dumb. The Appeals Court panel will adjust the gag just enough to persuade The Three Squishes on SCOTUS not to hear a further appeal.

[Sarcastr0]

Or, maybe, they will do a judgement thing and not the bad faith thing you've made unfalsifiable if they rule in Trump's favor or no.

[Lee Moore]

I promise to eat two whole slices of humble pie if they nix the gag order in toto. I should have thought that qualifies as "falsifiable."

But if they don't, “I told you so.”

[Sarcastr0]

Well, awesome job on the very narrow exception.

Look at how overdetermined you are – anything short of utter removal of the gag order counts as a secret and cynical ploy to avoid a cert grant in your bad-faith telepathy world.

The only evidence is that they're Democratic appointees.

The lack of professionalism conservatives assume in everyone else makes me really wonder about their own character more than that of, say, these judges.

[Lee Moore]

Since I can't conceive of any reason why it would be reasonable to ban any defendant from saying whatever he likes outside court, before or during the trial - aside from things that a defendant would never say in public like "Ice the judge, Mo" - I think my "very narrow exception" is very reasonable.

[Sarcastr0]

So your ignorant of the justification given, or at least don't want to engage it. So you assume a conspiracy.

Pretty out there, dude!

I quoted the NY guide order justification below if you care. Which you do not. Because overdetermination.

[Lee Moore]

I did read your comment with the NY judge’s patently absurd remarks.
What do you imagine prevents any of the other 300 million or so other people in the USA saying whatever it is a defendant might choose to say ?
Who could possibly imagine that stopping the defendant from saying something will ensure that that something will not be said ?
Honestly the judge saying that is ipso facto a demonstration that he’s an idiot who should never be allowed anywhere near the judicial bench.

[Sarcastr0]

Ipso facto, someone has demonstrated they are an idiot.

[Estragon]

“Ipso facto”

Wrong. Ipso dingus.

[Don Nico]

" So you assume a conspiracy."
There you go again. Your universal comeback when you cannot answer an argument

[Sarcastr0]

Don, read the fucking thread: "The Appeals Court panel will adjust the gag just enough to persuade The Three Squishes on SCOTUS not to hear a further appeal."

Lee thinks the gag order is not just bad law but a coordinated bad faith effort among these judges to keep Trump quiet.

Your shitty reading comprehension is not my problem, quit blaming me for it.

[Lee Moore]

Not quite. The original gag order is bad faith on the part of the original Dem judge. The Dem Appeals Court judges have not yet ruled so I can’t accuse them of having shown bad faith. That is merely my prediction. We’ll see if I’m right in a few weeks.

PS Don Nico is correct that your theatrical hissy fit has got in the way of your no doubt powerful rejoinder refuting my argument that banning a defendant from speaking does absolutely zip to prevent anybody else expressing the naughty thoughts that the defendant is banned from uttering. Making the ban a pointless exercise in staving off the purported dangers to court staff, but an effective way of stopping an opposition candidate from arguing his political case against the Hackery of Dem judges and Dem prosecutors. Which amazingly you seem to think shouldn’t be discussed.

[Sarcastr0]

The Dem Appeals Court judges have not yet ruled so I can’t accuse them of having shown bad faith.

Then why did you post this: "The Appeals Court panel will adjust the gag just enough to persuade The Three Squishes on SCOTUS not to hear a further appeal."

That is an accusation of bad faith to the panel that has not yet ruled.

It is, in fact, the whole reason I called you out - you have a whole Trump persecution worldview that is writing what's going to happen and what it means without any actual facts from the outside needed.
Yes, you allowed a narrow exception upon being challenged, but you didn't change your general narritivism.

[Lee Moore]

moi : The Dem Appeals Court judges have not yet ruled so I can’t accuse them of having shown bad faith.

Sarcastro : Then why did you post this: “The Appeals Court panel will adjust the gag just enough to persuade The Three Squishes on SCOTUS not to hear a further appeal.”

That is an accusation of bad faith to the panel that has not yet ruled.

Tenses, young fella ! Spot the difference between “will adjust” and “having shown”. I know you're not a text guy, but c'mon.

That is a prediction that they will rule in bad faith.

Is this hard ? Really ?

[Sarcastr0]

You *predict* bad faith in the future.

About people you know nothing about. And have weaved a whole plan for them on their behalf.

Which is dumb. And a conspiracy theory.

[Lee Moore]

One tip for improving your predictions about the future is to pay attention to the past. On the whole, judges appointed by Dem Presidents hack for their team because that’s why they’re selected. And on the whole their judgements are predictable on this basis. It’s not even as if you disagree with using ideology to make judicial decisions. You are the one who favors maximum judicial discretion and abhors keeping the judges in a textual straight jacket.

We know what they’ll do because we’ve seen the movie before.

[Lee Moore]

WORLD'S EASIEST PREDICTION - RESULTS NOW IN !

The original gag order is bad faith on the part of the original Dem judge. The Dem Appeals Court judges have not yet ruled so I can’t accuse them of having shown bad faith. That is merely my prediction. We’ll see if I’m right in a few weeks.

And I am.

[not guilty]

It is good that the Court of Appeals is moving quickly. A pretrial gag order is a prior restraint on speech. The First Amendment requires immediate appellate review or, absent that, a stay pending appeal. See, National Socialist Party v. Village of Skokie, 432 U.S. 43 (1977), after remand 434 U.S. 1327. The D.C. Circuit here appears to have covered both bases.

[Commenter_XY]

not guilty, just curious. How long after November 20th do you think the Court of Appeals will take? Will there be a decision by Hanukah?

[not guilty]

I think the Court of Appeals will move quickly. If their ruling upholds the partial gag order, I expect Trump will seek review by SCOTUS. Whether they will grant review is anyone's guess, but there is no reason to delay the trial either way.

[David Nieporent]

Unless the circuit court offers something so crazy that it can be dealt with via a shadow docket reversal, I don't see SCOTUS getting involved. What's the upside for SCOTUS?

[not guilty]

SCOTUS has upheld the validity of an attorney disciplinary rule restricting speech by defense counsel -- extrajudicial statements to the press that he knows or reasonably should know will have a "substantial likelihood of materially prejudicing" an adjudicative proceeding -- against First Amendment attack. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1063 (1991). The Court, however, has never articulated what standard applies to pretrial gag orders on a criminal defendant. There is an inter-circuit split there, as described in United States v. Brown, 218 F.3d 415, 427 (5th Cir. 2000).

[Litoky]

It is odd how Volokh avoids commentary on First Amendment issues when they involve Defendant 45.

[Rev. Arthur L. Kirkland]

Not so much odd as cowardly and predictable polemical partisanship.

[Rev. Arthur L. Kirkland]

The Volokh Conspiracy also won't cover this, but Indiana Attorney General Todd Rokita is another unprofessional right-wing asshole with a law degree. He is reported to have admitted his disgusting, unprofessional conduct today in an effort to save his law license.

[Frank Drackman]

I’ll give you this much, “Reverend”, I mean “Coach”.
You’re certainly the authority in Assholes committing disgusting unprofessional (and unnatural) acts.
So what happens when a Foo-Bawl Coach gets to Prison? Does the Warden try to get you to coach the Prison Guard team? (Would serve them right) Bribe you to coach the Prisoner team, but to fuck it up? (you could just perform like you did at State College and nobody would know)

Frank

Frank

[Estragon]

November 12th! Coming right up! Are you as excited as I am??

[not guilty]

The Court of Appeals panel that issued the scheduling order is Judges Millet, Pillard and Garcia. Two Obama appointees and one Biden appointee. I wonder if that will be the merits panel as well.

[JBogart]

It would be helpful if Prof. Volokh added a brief explanation of the standards for granting an administrative stay.

[Rev. Arthur L. Kirkland]

Prof. Volokh doesn't like to talk about

indicted boor Donald Trump,

un-American asshole, Hoover Institution favorite, and Volokh Conspiracy dreamboat John Eastman,

disgraced former judge Alex Kozinski,

un-American defendant and Federalist Society favorite Jeffrey Clark,

or any of the disbarred or sanctioned members of Trump Litigation: Elite Strike Force.

He prefers to focus on Muslims, transgender parenting issues, lesbians, racial slurs, transgender rest room issues, white grievance, drag queens, transgender sorority drama, Black crime, and the other most important issues of our time.

[Frank Drackman]

If the rule you followed brought you to this, of what use was the rule? And “Reverend/Coach”, is this Chucklehead Judge one of my “Bettors”?? Doesn’t look like she has a great Track record.

“On November 20, 2019, Judge Tanya Chutkan issued a preliminary injunction against the U.S. Department of Justice, finding that federal inmates sentenced to death were likely to succeed in arguing that the federal government’s new lethal injection procedure — which uses a single drug, pentobarbital, rather than the three-drug combination previously in place — “exceeds statutory authority” under the Federal Death Penalty Act. Chutkan’s order was later reversed by a divided panel of the U.S. Court of Appeals for the D.C. Circuit, and the case went to the U.S. Supreme Court. The reversal of the injunction was upheld and thirteen federal inmates were executed.”

Frank

[Mr. Bumble]

...and of course Judge Gorgon has now gagged Trumps lawyers in the NY case.

[Biastians]

The judge has a very gassable looking face. Would have taken to Zyklon B back in the 40s very well.

[Rev. Arthur L. Kirkland]

Profs. Bernstein and Volokh are going to issue a pass on those comments, Blastians, because you may be a bigot but you are a right-wing bigot.

Carry on, clingers.

[Biastians]

Hitler would have been justified if he spared the frum and only gassed the liberals.

[Estragon]

“Hitler would have been justified”

Oy vey

[Rev. Arthur L. Kirkland]

Let’s remember this the next time Volokh or Bernstein whine and whimper about something a college student said about Israeli misconduct.

[Estragon]

DB threatened to call my boss because I called his institution “ASS LAW” in comments.

It’s possible you have a point

[Rev. Arthur L. Kirkland]

Didn't that school call itself "ASSOL" or something similar?

What does Prof. Bernstein think about working for a school named for a gay-hating bigot?

I assume he loves it. His objections to bigotry are selective, predictable, partisan, and unprincipled.

[BillyG]

While allowing the prosecution to say anything they want to the public. Strange that.

[Drewski]

Obviously a liberal conspiracy. Worst of all, Trump and his lawyers appear to be in on it, offering cover to the judge by not even requesting a gag order against the prosecutor. This one goes deep.

[John F. Carr]

The docket on courtlistener is here: https://www.courtlistener.com/docket/67891889/united-states-v-donald-trump/

[Kenneth Almquist]

Thanks.

[Sarcastr0]

I cede to notguilty's legal acumen about the rights issues here, but would note this quote from the Manhattan Supreme Court Judge Arthur Engoron on the NY gag order:

"My chambers have been inundated with hundreds of harassing and threating phone calls, voicemails, emails, letters, and packages. The First Amendment right of defendants and their attorneys to comment on my staff is far and away outweighed by the need to protect them from threats and physical harm"

You MAGA tools are violent and deluded. You complain about something that is largely your fault.

[Biastians]

No, the First Amendment right to comment on the workings of the judicial system is not outweighed by the need to protect them from threats (assuming they even took place). I wouldn't be surprised if he fabricated the whole thing, like left-wing Jews and blacks are wont to do.

[Sarcastr0]

like left-wing Jews and blacks

Weird we keep getting comments like this around here. I heard antisemitism was a leftist thing.

[Mr. Bumble]

"I heard antisemitism was a leftist thing."
You heard right.

[Sarcastr0]

Big lefty energy coming from Biastians, eh? One of those leftist Trump supporters.

[Davy C]

Is "Biastians" a handle a right-winger would pick, or a name a left-winger trying to satirize a right-winger would pick?

[Sarcastr0]

I don't know the context either way. But this particular poster with many names has a lot of staying power for a satirist.

[Life of Brian]

But this particular poster with many names

To know this are you a mind-reader, or a hacker? C'mon -- don't keep us in suspense!

[Sarcastr0]

He has a pretty distinctive style, as I expect you noticed.

[SimonP]

It's probably just one or two people, creating new handles when they feel like they've been muted to the point that their comments aren't penetrating to reach their audience.

[Sarcastr0]

Maybe, but there's at least 3 distinct posters like that in the VC (BCD, idhax, and this guy). And if you look at Trump fanatical places (gab, TruthSocial, Politics.win) you find a bunch more.

The left *absolutely* has it's issues in this are as well. But the chuckleheads around here who say it's just an issue on the left must not care about the truth, so much as finding another partisan cudgel.

[Frank Drackman]

Pauline Kael much?
And for the culturally illiterate, I shall Frank-Splain,
She was a Film Critic for the New Yorker who famously said after the 1972 Erection (and if she didn't say it, she should have)
“I can’t believe Nixon won. I don’t know anyone who voted for him.”
That's right, 70+ million Trump votes came from one or two people, keep believing that.

Frank

[Biastians]

I don't have an issue with Jews, the way leftists do. I have an issue with leftists, and leftist Jews are particularly evil because they use their religion to justify their sick ideology, even though the religion itself couldn't be more opposed to Marxists' perverted ideas. An example is "We must import the whole third world because we were once strangers in the land of Egypt."

[Rev. Arthur L. Kirkland]

It's easy to identify the antisemitic comments from conservatives at the Volokh Conspiracy -- they're the antisemitic comments that Bernstein doesn't say a word about.

It is wrong to think that Bernstein is any different from the other right-wing law professors who operate this blog -- none of them says anything about the incessant right-wing bigotry at the Volokh Conspiracy.

Unless it's to cultivate a target audience of conservative bigots of all stripes (antisemites, gay-bashers, racists, Islamophobes, misogynists, white nationalists, immigrant-haters -- all are present and all are welcome, every day, at the white, male Volokh Conspiracy blog.