After receiving attention last month for yelling at former President Donald J. Trump’s lawyer for refusing to answer a hypothetical question, Marine native and Circuit Judge Patricia A. Millett delivered an opinion for the U.S. Court of Appeals in the D.C. Circuit partially upholding his gag order.
Millett authored the ruling on Dec. 8 with Judges Cornelia Pillard and Bradley Garcia concurring. All three judges presiding over Trump’s case were appointed to their seats by the Democratic presidents prior to and immediately following Trump’s presidency. Millett and Pillard were nominated by former President Barack Obama in 2013, and Garcia was nominated by President Joe Biden in 2022 and confirmed in 2023.
Millett's nomination to the bench follows a rural-Illinois upbringing that led to her elite legal career in Washington D.C.
According to an article by the University of Illinois Alumni Association, Millett grew up “right in the cornfields” of Marine, Illinois, after her father became a history professor at Southern Illinois University. She studied at the University of Illinois at Urbana-Champaign before heading east to attend Harvard Law School, where she graduated in 1988.
She followed law school by working briefly at the private law firm Miller & Chevalier in Washington D.C., according to her appellate court biography.
Millett then clerked for Judge Thomas Tang of the U.S. Court of Appeals for the Ninth Circuit and worked on the Appellate Staff of the Civil Division in the U.S. Department of Justice as an assistant in the Office of the Solicitor General.
By September 2007, Millett returned to private practice and led the Supreme Court and appellate practices at Akin Gump Strauss Hauer & Feld LLP. She argued 32 cases before the U.S. Supreme Court before being appointed to the bench.
Trump's gag order
Millett, Pillard and Garcia found that Trump’s criminal proceedings required some constraint but that the district court’s gag order “sweeps in more protected speech than is necessary.”
“We do not allow such an order lightly,” Millett wrote. “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.”
Specifically, the appeals court affirmed prohibiting all parties and their counsel from initiating public statements about witnesses concerning their potential participation in the case, statements about counsel in the case, members of the court’s staff and counsel’s staff, or the family members of any counsel or staff member.
The appeals court vacated the district court’s order prohibiting speech beyond those specified categories.
“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,” Millett wrote. “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 politically motivated or that he is innocent of the charges against him.”
During the hearing held before the court of appeals in November, Millett appears to grow frustrated with Trump’s counsel as he struggles to answer a hypothetical question.
“Defendant shall not communicate with witnesses,” Millett asked during the hearing. “You keep talking about directly communicate. So is it your position that if he communicates through a social media post, ‘Hey witness X, I know the prosecutor’s bothering you trying to get you to say bad things about me. Be a patriot. Don’t act treasonously. Don’t cooperate.”
Trump’s lawyer responds, “We have no s—,” before Millett cuts him off.
“I am not! It is really … I really want an answer to your understanding of the release conditions,” she said. “This is, for the record, a hypothetical question. It to my knowledge hasn’t happened. Apparently to your knowledge it hasn’t happened. Not even saying it would happen. I want to understand how you, because you have said, no first Amendment problem with the release condition. OK, so I’ve asked you that question. Does that communication violate the release condition?”
Trump’s lawyer said, “If social media posts that is a direct communication to a witness could well violate it. We would have to know more about the context.”
Millett responds, “No! No, I’ve given you, I’ve given you exactly the content of the communication. I don’t know what more you wanted. I’ve given you the text.”
A federal grand jury indicted Trump on Aug. 1, 2023, on allegations of conspiring to overturn the 2020 presidential election and for obstructing the election’s certification.
The charges pending in the U.S. District Court for the District of Columbia arose after Trump refused to concede to President Joe Biden in the 2020 presidential election, claiming there had been “outcome-determinative fraud.”
Specifically, Trump claimed the election had been “rigged” and characterized by “tremendous voter fraud and irregularities.”
The charges accuse Trump of publicly and privately pressuring state and local officials to overturn the election results, which he claimed were fraudulent.
Trump posted statements on his social media accounts regarding potential witnesses in his federal case, the judge, and the special counsel and his staff prosecuting the case. In response, the district court issued a gag order.
Trump appealed the 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,” Millett wrote in the court of appeals’ opinion.
Millett noted that freedom of speech is a “bedrock constitutional right” and political speech “is the lifeblood of American democracy.” She added that free speech holds government officials accountable as public criticism and scrutiny expose fraud, curb abuse of power and root out corruption.
She wrote that free speech regarding judicial proceedings promote 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.”
However, Millett held that protected speech must be regulated “when necessary to protect a compelling governmental interest.” In this case, that “compelling governmental interest” is the “fair administration of a criminal trial.”
“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,” she wrote.
Millett admitted that court orders restraining speech about an ongoing criminal case are “presumptively unconstitutional,” but said the courts have a responsibility to act in this case.
“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,” she wrote.
She concluded that the district court had the authority to restrain Trump’s speech in order to address “the imminent risk to the fair and orderly administration of justice, and that no less restrictive alternatives would adequately address that risk.”
“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,” Millett wrote.
“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,” she added.