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 28 U.S.C. § 2106.

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 coconspirators “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 thenPresident 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, 830 F. App’x 377, 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 id. 

¶¶ 26, 29. 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 thenPresident, 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[, 384 U.S. 333 

(1966),] a ‘carnival atmosphere’ of unchecked publicity and 

trial by media rather than our constitutionally established 

system of trial by impartial jury.” Id. 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.” Id. 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, Trumphating 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-cr413, 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. Id. 

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, 384 U.S. at 363), 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. Id. 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[.]” 28 U.S.C. § 1291. 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, 486 U.S. 517, 521–522 (1988); 

Cincinnati Ins. Co. v. All Plumbing, Inc., 812 F.3d 153, 156 

(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, 620 F.3d 1, 5 (D.C. Cir. 2010) (citing Will v. Hallock, 

546 U.S. 345, 349 (2006)). In addition, in Mohawk Industries, 

Inc. v. Carpenter, 558 U.S. 100 (2009), the Supreme Court 

underscored that “the class of collaterally appealable orders 

must remain ‘narrow and selective in its membership.’” Id. at 

113 (quoting Will, 546 U.S. at 350). 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, 

501 U.S. 1030, 1070 (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, 218 F.3d 415, 

420 (5th Cir. 2000); In re Rafferty, 864 F.2d 151, 154 (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, 

539 U.S. 113, 119 (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, 573 U.S. 149, 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, 415 U.S. 452, 459 (1974)). 

For those reasons, we hold that we have jurisdiction under 

the collateral-order doctrine. See In re Stone, 940 F.3d 1332,

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 collateralorder doctrine); see also Brown, 218 F.3d at 420–422 (speech 

restraint in criminal trial is appealable under the collateralorder doctrine); United States v. Ford, 830 F.2d 596, 598 (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, 

187 F.3d 672, 674 (D.C. Cir. 1999); United States v. Bronstein, 

849 F.3d 1101, 1106 (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, 35 F.4th 

807, 817 (D.C. Cir. 2022) (quoting United States v. United 

States Gypsum Co., 333 U.S. 364, 395 (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 28 U.S.C. § 1292(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. 28 U.S.C. § 2106.

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 truthfinding 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, 562 

U.S. 443, 452 (2011) (quoting New York Times Co. v. Sullivan, 

376 U.S. 254, 270 (1964)). “That is because ‘speech 

concerning public affairs is more than self-expression; it is the 

essence of self-government.’” Id. (quoting Garrison v. 

Louisiana, 379 U.S. 64, 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, 384 U.S. 214, 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.” Id. 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, 424 U.S. 1, 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., 489 U.S. 214, 223 (1989) (quoting Monitor 

Patriot Co. v. Roy, 401 U.S. 265, 272 (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, 456 U.S. 45, 53 (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.” Id.

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, 384 U.S. at 350. “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, 501 U.S. at 

1035.

“[T]o provide adequate ‘breathing space’” for robust 

public debate and participation, the First Amendment generally 

shields “insulting, and even outrageous, speech[.]” Snyder, 

562 U.S. at 458 (quoting Boos v. Barry, 485 U.S. 312, 322 

(1988)); cf. Virginia v. Black, 538 U.S. 343, 358 (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, 600 U.S. 66, 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, 379 U.S. 559, 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, 466 U.S. 668, 684 (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, 501 U.S. at 1070; 

see Irvin v. Dowd, 366 U.S. 717, 722 (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, 309 

U.S. 227, 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, 380 U.S. 

24, 36 (1965). The public has its own compelling interest “in 

fair trials designed to end in just judgments.” Wade v. Hunter, 

336 U.S. 684, 689 (1949); see Gentile, 501 U.S. at 1075; 

Brown, 218 F.3d at 600 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, 384 U.S. at 363, 

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, 328 

U.S. 331, 347 (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, 435 U.S. 

829, 844 (1978); see Bridges v. California, 314 U.S. 252, 260–

263 (1941). 

In fact, court orders restraining speech about an ongoing 

criminal proceeding are presumptively unconstitutional. 

Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 558 (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, 331 U.S. 

367, 374 (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, 418 U.S. 683, 707 (1974). As part of that duty, courts 

must “prevent the prejudice” to the trial process “at its 

inception.” Sheppard, 384 U.S. at 363; see Nebraska Press, 

427 U.S. at 553 (The cure for prejudice to the trial “lies in those 

remedial measures that will prevent the prejudice at its 

inception.”) (quoting Sheppard, 384 U.S. at 363). 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, 384 U.S. at 

363; see Nebraska Press, 427 U.S. at 553. 

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, 379 U.S. at 583 

(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.” Id. at 351 

(quoting Patterson v. Colorado ex rel. Attorney General, 205 

U.S. 454, 462 (1907)); see Geders v. United States, 425 U.S. 

80, 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, 379 U.S. at 

562 (citing Wood v. Georgia, 370 U.S. 375, 383 (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, 467 U.S. 20, 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, 452 U.S. 89, 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, 384 U.S. at 363. Courts “must” be 

proactive, id., and, when warranted, “proscribe[] extrajudicial 

statements by any lawyer, party, witness, or court official” 

engaging in “prejudicial” communications, id. at 361. See id. 

at 359 (“[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, 501 U.S. 1030 (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.” Id. at 1059. 

The state bar initiated disciplinary proceedings against the 

lawyer for violating a state bar rule prohibiting an attorney 

from publicly making certain extrajudicial statements. Id. at 

1033. 

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, 501 U.S. at 1075. 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.” 

Id. at 1065; see id. at 1072–1076. One aspect of the Court’s 

reasoning focused on lawyers’ roles as “officers of the court,” 

id. at 1074 (quoting Nebraska Press, 427 U.S. at 601 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, 384 U.S. at 363; Sacher v. United States, 343 U.S. 

1, 8 (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, 384 U.S. at 363 (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, 481 U.S. 739, 749 (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[.]” 18 U.S.C. § 3142(c)(1)(B). 

Such conditions commonly include measures that burden 

criminal defendants’ ability to act, associate, and speak. See 

id. § 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.” 18 U.S.C. § 3142(c)(1)(B)(v); cf. United States v. 

Perazza-Mercado, 553 F.3d 65, 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, 427 U.S. at 562; 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., 425 U.S. 748, 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, 467 U.S. at 32 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, 501 U.S. at 1075; Wade, 336 U.S. at

689. 
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, 435 U.S. at 843; 

see id. at 842–843. Here, the relevant danger is the 

“substantive evil of unfair administration of justice[,]” 

Landmark Commc’ns, 435 U.S. at 844 (quoting Bridges, 314 

U.S. at 271), and impairment of “the unhindered and 

untrammeled functioning of our courts [that] is part of the very 

foundation of our constitutional democracy[,]” Cox, 379 U.S. 

at 562. 

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. 501 U.S. at 1075. 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 speechrestricting 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, 435 U.S. 829, 

842–846 (1978), and Nebraska Press Association v. Stuart, 427 

U.S. 539, 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, 18 U.S.C. § 1512(b), harassing 

those assisting in a prosecution, id. § 1512(d)(4), and unlawful 

threats, see, e.g., id. § 875; id. § 1503(a); D.C. Code § 22-407 

(misdemeanor threats); id. § 22-1810 (felony threats); see also 

Counterman, 600 U.S. at 74; Elonis v. United States, 575 U.S. 

723, 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-presentdanger 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, 435 

U.S. at 842 (quoting Pennekamp, 328 U.S. at 353 (Frankfurter, 

J., concurring)); see Gentile, 501 U.S. at 1036 (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[,]” 435 

U.S. at 837 (emphasis added), and the Court explicitly noted 
28

that limiting the statute at issue to trial participants “might well 

save the statute[,]” id. 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. Id. at 837 (emphasis 

added); see id. at 841 (“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 id. 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, 435 U.S. at 842 (quoting 

Pennekamp, 328 U.S. at 353 (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, 331 U.S. at 369, 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, 

435 U.S. at 837, 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, 830 F.2d 596, 598–602 (6th Cir. 1987), it did 

so before Gentile and did not acknowledge Landmark 

Communications’ direction against using the clear-and-presentdanger 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. Id.

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, 

381 U.S. 532 (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.” 

Id. at 547. 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, 425 U.S. at 87

(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, 488 U.S. 272, 

281 (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 

18 U.S.C. § 3142(c)(1)(B)(v); see generally Nixon, 418 U.S. at 

709 (“[T]he public * * * has a right to every man’s 

evidence[.]”) (quoting United States v. Bryan, 339 U.S. 323, 

331 (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, 384 U.S. at 

359 (restrictions on witnesses observing other witnesses’ 

testimony mean nothing if “the full verbatim testimony [is] 

available to them in the press”); Estes, 381 U.S. at 547. 

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,” id. 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, 427 U.S. at 563, 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, 501 U.S. at 1075 (quotation marks omitted); 

see Sheppard, 384 U.S. at 363. 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, 379 U.S. at 562, 

565. 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.” 427 U.S. at 563. 

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, 505 U.S. 123, 134–135 

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

express “hostility to” the message, Cox, 379 U.S. at 551. 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, 432 

U.S. 43, 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, 395 

U.S. 444, 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, 514 U.S. 334, 347 (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, 

907 F.3d 788, 797 (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, 726 F.2d 1007, 

1010 (4th Cir. 1984)); see also Williams-Yulee v. Florida Bar, 

575 U.S. 433, 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., 556 U.S. 868, 889 

(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, 501 U.S. at 

1075 (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.” Id. 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, 501 U.S. at 1075, 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, 218 F.3d 415 (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. Id. at 419. 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. Id. 

That forced the district court to partially reimpose the gag 

order. Id. 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, 435 U.S. at 844 (quoting 

Bridges, 314 U.S. at 271); see Gentile, 501 U.S. at 1076. 

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, 456 U.S. at 53. 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, 412 F.2d 661, 

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, id. 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, 435 U.S. at 843.

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, 328 U.S. at 359 

(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 meetinghall, the radio, and the newspaper.” Id. at 350 (quoting 

Bridges, 314 U.S. at 271). 

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, 328 

U.S. at 347. 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, 379 

U.S. at 562.19

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, 726 F.2d at 1008 

(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, 412 F.2d at 663 & 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, 384 U.S. at 361 

(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, 501 U.S. at 

1076 (acknowledging the State’s legitimate interest in 

prohibiting attorney “speech having a substantial likelihood of 

materially prejudicing that proceeding”); id. at 1074 (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, 849 F.3d 1101, 1106–1107 (D.C. Cir. 

2017) (quoting Rose v. Locke, 423 U.S. 48, 50 (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, 98 F.3d 619, 630 (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, 491 U.S. 781, 794 

(1989) (“[P]erfect clarity and precise guidance have never been 

required even of regulations that restrict expressive activity.”); 

Grayned v. City of Rockford, 408 U.S. 104, 110 (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, 384 U.S. at 363.

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, 501 U.S. at 1035. As a result, 

the public has a strong and “legitimate interest in their 

operations.” Id. 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, 448 U.S. 555, 575 

(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, 384 U.S. at 350.

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, 435 U.S. at 839 (quoting 

Bridges, 314 U.S. at 289 (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, 435 U.S. at 839 (quoting Bridges, 314 U.S. at 289 

(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, 600 U.S. 

at 75 (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. Id. (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, 384 U.S. 

at 359. 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, 600 U.S. at 80. He must fairly bear 

responsibility for the known consequences of his actions. See 

id.; see also id. 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, 600 U.S. at 78. 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, 435 U.S. at 844. Furthermore, the relevant mental 

states can commonly be proved with objective evidence. See

Washington v. Davis, 426 U.S. 229, 253 (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, 

597 F.3d 1329, 1341 (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 28 U.S.C. § 2106. 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 id.

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.