A three-judge federal appeals court panel appears skeptical of arguments from Donald Trump’s legal team to overturn a gag order that blocks the former president from attacking witnesses and prosecutors in a criminal conspiracy case surrounding his attempts to overturn the 2020 presidential election.
But the judges also appear likely to narrow the scope of the order, hoping to balance First Amendment protections and political speech against the wave of threats and harassment unleashed by Mr Trump and his supporters towards the prosecutors, judges, witnesses and prospective jurors involved with a growing list of litigation against him.
The gag order imposed by US District Judge Tanya Chutkan last month blocked Mr Trump from launching a “pretrial smear campaign” as he seeks the 2024 Republican nomination for president, the judge wrote.
That order was paused by the appeals court in Washington DC, which heard arguments in the case on Monday during a hearing that lasted nearly three hours. A ruling is not immediately expected.
Mr Trump’s attorney John Sauer repeatedly argued his client’s statements are “core political speech” protected under the First Amendment, but Circuit Judge Patricia Millett cut him off at one point to ask whether those comments are merely protected political speech or “political speech aimed at derailing or corrupting the criminal justice process.”
“You can’t simply label it that, and conclude your balancing tests that way,” she said.
Cecil VanDevender, an attorney for US Department of Justice special counsel Jack Smith, argued that the gag order sufficiently addressed those threats, agreeing with the special counsel’s argument that Mr Trump relies on a “well-established practice of using his public platform to target his adversaries” that “poses a significant and immediate risk to the fairness and integrity of these proceedings.”
“It creates a world in which public servants will have to decide, ‘Do I want to handle this kind of case … or in doing so will I be threatened, my family be threatened?’ There’s a chilling effect and a pall cast on the whole proceedings,” he added. “How likely are you to quit if your family received a death threat?”
Mr 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 well-known dynamic to his advantage,” the filing added, and “it has continued unabated as this case and other unrelated cases involving the defendant have progressed.”
The judges, however, appeared open to limiting some of the language in the order and “the notion that high profile public figures or governmental officials who’ve taken on enormous responsibility like prosecutors can’t stand up to some inflammatory language,” Judge Millett said.
“It can’t be that he can’t mention Mr Smith,” she added “Surely he has a thick enough skin.”
Mr Trump can’t be expected to be “Miss Manners” while “everyone else is throwing targets” during a hypothetical presidential debate among GOP candidates, the judge added.
The former president’s efforts to reverse his loss in the 2020 election yielded four criminal charges in a 45-page indictment, alleging a multi-state scheme built on a legacy of lies and conspiracy theories to undermine the democratic process.
Last week, attorneys representing Mr Trump in a civil trial stemming from a lawsuit alleging years of fraud in his real estate empire sued to overturn the gag order in that case, now in its eighth week in New York.
A state appeals court judge agreed to pause the order, which the trial judge had put in place after Mr Trump posted false claims and disparaging remarks about his chief court clerk. He had also added a gag order against his attorneys for similarly disparaging remarks aimed at his court staff.
In a court filing for the second order earlier this month, Judge Arthur Engoron said that his “chambers have been inundated with hundreds of harassing and threatening phone calls, voicemails, emails, letters, and packages” since the start of the trial.
“The First Amendment right of defendants and their attorneys to comment on my staff is far and away outweighed by the need to protect them from threats and physical harm,” he added.
