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Appeals Court May Unmuzzle Trump: Could D.C. Gag Order Be Scaled Back?

In a remarkable break from established legal precedent, the US Court of Appeals for the District of Columbia has suggested that President Trump’s executive order limiting testimony from District of Columbia agencies may be far too restrictive. The executive order, issued last May, directed that “no person or entity employed by the District of Columbia or any of its agencies or instrumentalities shall testify or provide information in any suit, action, or proceeding to which the United States is a party,” unless it is with permission from the President or an explicit statutory authorization.

The Court of Appeals noted that a broad restriction such as the one within President Trump’s executive order could violate the “First Amendment’s protections of speech on matters of public concern.” Furthermore, the Court suggested that due consideration must be given to the potential for chilling effects that silencing of D.C. government employees could have on the executive branch’s functioning of government, noting that the executive order “impedes the ability of government entities to effectively carry out their assigned tasks and may interfere with the efficient administration of the executive branch.”

The Court of Appeals highlighted the fact that President Trump’s executive order was narrower than the prohibition requested by the government’s counsel, and that what was ultimately included in the executive order was of dubious constitutionality. In an effort to balance the interests of the executive branch while protecting the rights of D.C. government employees, the Court suggested that the government should accept the more narrow prohibition that is “coextensive with the law of the District.”

In response to the ruling, the White House is expected to issue a narrower version of the executive order. It is likely that the new executive order will still impose restrictions on D.C. government employees, but it is expected that the new executive order will be more limited in scope than the previous version. In the meantime, it is unclear how the ruling will be implemented and what immediate effects it will have on the executive branch’s functioning.

The Court of Appeals’ suggestion that President Trump’s executive order may be overly restrictive is a significant victory for First Amendment advocates. Despite the White House’s expected issuance of a narrower executive order, the ruling will likely result in increased protection for D.C. government employees from the executive branch’s power. With any luck, it will also serve as a reminder that this power, while important, is still subject to legal limitations.

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