by A three-judge panel of a federal appeals court appears skeptical of Donald Trump's legal team's arguments to overturn a gag order that prevents the former president from attacking witnesses and prosecutors in a criminal conspiracy case surrounding his efforts to overturn his presidential election 2020.
But the justices also appear likely to narrow the scope of the provision, hoping to balance First Amendment protections and political speech against the wave of threats and harassment that Mr. Trump and his supporters have unleashed on prosecutors, judges, witnesses and prospective jurors involved in a growing list of lawsuits against him.
The gag order imposed by U.S. District Judge Tanya Chutkan last month prevented Trump from launching a “preliminary smear campaign” as he seeks the Republican nomination for president in 2024, the judge wrote.
That order was halted by the appeals court in Washington, which heard arguments in the case Monday during a hearing that lasted nearly three hours. No decision is expected immediately.
Trump's lawyer, John Sauer, has repeatedly argued that his client's remarks are “core political speech” protected under the First Amendment, but U.S. District Judge Patricia Millett interrupted him at one point to ask if those comments were merely protected politics speech or “political speech aimed at derailment. or corruption of the criminal justice process'.
“You can't just label it like that and complete your balance tests like that,” he said.
Cecil VanDevender, a lawyer for U.S. Justice Department special counsel Jack Smith, argued that the gag order adequately addressed those threats, agreeing with the special counsel's argument that Mr. Trump is relying on a “well-established practice of using public platform to target opponents” that “poses a significant and immediate risk to the fairness and integrity of these proceedings.”
“It creates a world in which public officials will have to decide, ‘Do I want to handle this kind of case … or do I put myself, my family, at risk?' There is a chilling effect and an inconvenience to the whole process,” he added. “How likely would you be to resign if your family received a death threat?”
Smith's team described that dynamic in a recent court filing as “part of a pattern, stretching back years, in which people publicly targeted” by Mr. Trump “are subject to harassment, threats and intimidation.”
Mr. Trump “seeks to use this known momentum to his advantage,” the filing added, and “has continued unabated as this case and other unrelated cases involving the defendant have progressed.”
The justices, however, appeared open to limiting some of the language in the provision and “the notion that high public figures or government officials who have been given enormous responsibilities such as prosecutors cannot tolerate some inflammatory language,” Judge Millett said. he said.
“He can't help but mention Mr. Smith,” he added “He sure has a pretty thick skin.”
Trump can't be expected to be “Miss Trump” while “everyone else is taking aim” during a hypothetical presidential debate between the GOP candidates, the judge added.
The former president's efforts to overturn his 2020 election defeat have yielded four criminal charges in a 45-page indictment alleging a multi-state scheme based on a legacy of lies and conspiracy theories to undermine the democratic process.
Last week, lawyers representing Mr. Trump in a civil trial stemming from a years-long fraud lawsuit in his real estate empire sued to overturn a gag order in that case, now in its eighth week in New York.
A state appeals court judge agreed to halt the order, which the judge had put in place after he posted false allegations and disparaging remarks about his chief justice. He had also added a gag order against his lawyers for similar disparaging comments aimed at his judicial staff.
In a court filing for the second order earlier this month, Judge Arthur Engoron said “his chambers have been inundated with hundreds of harassing and threatening phone calls, voicemails, emails, letters and packages” since the trial began.
“The First Amendment right of defendants and their attorneys to comment to my staff is far outweighed by the need to protect them from threats and physical harm,” he added.
