A federal appeals court in Washington sounded skeptical Monday of Donald Trump’s arguments that he should not face a gag order that restricts his statements about the federal criminal case in Washington tied to his effort to overturn the 2020 election.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit grilled Trump attorney Dean John Sauer for nearly two hours over the order, which was issued by the district court judge overseeing that criminal case.
The order restricts Trump from “targeting” witnesses, court staff and prosecutors with language that could have them face harassment.
Sauer highlighted how it clamped down on the speech of the leading candidate for the Republican presidential nomination, the kind of political debate that is central to free speech protections of the First Amendment.
“The order is unprecedented, and it sets a terrible precedent on future restrictions on core political speech,” Sauer said.
Judge Patricia Millett questioned whether Sauer’s position would allow Trump to attack the criminal process by labelling his commentary “political speech” related to the campaign when it really was meant to sway what happened in the courtroom.
“Labeling it core political speech begs the question of whether it is in fact political speech, or whether it is political speech aimed at derailing or corrupting the criminal justice process,” Millett said.
Sauer also argued that a judge would need to have “incredibly compelling” evidence that the trial was about to be derailed to justify restraining Trump’s speech to justify a prior restraint on Trump’s speech.
He said District Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia imposed a gag order restricting Trump when there was no evidence witnesses had been harassed.
Judge Bradley N. Garcia questioned whether that requirement would go too far because it would require Chutkan to wait until after the damage was done.
“It seems at times your position would be that the district court’s hands are tied until we actually know there has already been harm to the integrity of the trial, for example, that a witness has been intimidated,” Garcia said. “You certainly can’t be saying that’s what we need.”
In the three months since prosecutors unveiled the four-count indictment, Trump has called Special Counsel John L. “Jack” Smith a “thug” and criticized potential witnesses like former Vice President Mike Pence, former Chief of Staff Mark Meadows and former Chairman of the Joint Chiefs of Staff Gen. Mark Milley, saying they may lie or they deserve the death penalty.
In last month’s hearing, Chutkan said Trump’s free speech rights do not allow him to engage in a “pretrial smear campaign” against witnesses that reminded her of 12th Century English King Henry II’s statements — “won’t someone rid me of this meddlesome priest?” — that ultimately prompted the murder of cleric Thomas Becket.
Chutkan granted a partial gag order, prohibiting him from “targeting” witnesses, prosecutors or court staff with language that could cause them to become threatened. She explicitly carved out discussion of herself, the Biden administration and the political positions of some witnesses such as Pence.
Cecil VanDevender, attorney for Smith’s office, argued that Trump’s history of inflammatory rhetoric posed a “significant” threat to the impartiality of the trial, which the court balanced against his free speech rights.
“He can comment, yes. And he can comment very critically. What he cannot do is use the sort of inflammatory language that poses a significant risk that they will be subjected to threats, harassment, intimidation,” VanDevender said.
The government faced questions from the panel over the portion of the order that protected court staff and prosecutors from criticism. Pillard at one point said of Smith that “surely he has a thick enough skin” that any commentary would not change his behavior.
“It’s hard to see how this portion of the restrictive order is going to succeed in preventing a trial in the court of public opinion,” Pillard said. “I took her order to more be focused on protecting individuals, protecting witnesses, from threats, from harassment from, you know, fawning and efforts to positively motivate them and the like.”
VanDevender pushed back, arguing that allowing Trump to comment about prosecutors and court staff posed a risk to the court system, where they may not be willing to participate in the trial.
“I think exposing trial participants, whether those are courtroom staff, line prosecutors or others, to the risks of threats, harassment, intimidation, poses a systemic risk to the fairness and integrity of the proceedings,” he said.
Since Chutkan entered the gag order, Trump has still routinely criticized the case against him, the Biden administration and a second federal case brought by Smith over Trump’s alleged mishandling of sensitive documents after the end of his presidency.
On Friday, Trump made several posts on Truth Social complaining of “SELECTIVE PROSECUTION” and criticizing the Biden administration following a CNN report that a special counsel may not bring charges against President Joe Biden for his alleged mishandling of classified documents.
Violating the gag order could carry civil fines, sanctions and even a new date for the trial currently scheduled for March, Chutkan said.