A three-judge appellate court panel appeared likely to uphold but limit a D.C. judge's gag order on former President Donald Trump during a hearing on Monday, legal experts say.
Trump's legal team was pressed on their appeal of the gag order, which was imposed by U.S. District Court Judge Tanya Chutkan in his criminal D.C. election interference case. Chutkan issued the order in October, barring the ex-president from targeting court staff, special counsel Jack Smith's staff and potential witnesses in the case. She temporarily paused the order while the former president's legal team appealed; however, she ultimately reimposed it after Smith's team raised concerns that Trump was using the pause to target witnesses like former chief of staff Mark Meadows in Truth Social posts.
“As the court has explained, the First Amendment rights of participants in criminal proceedings must yield, when necessary, to the orderly administration of justice—a principle reflected in Supreme Court precedent, the Federal Rules of Criminal Procedure, and the Local Criminal Rules,” Chutkan wrote. “And contrary to Defendant’s argument, the right to a fair trial is not his alone, but belongs also to the government and the public.”
Trump's attorneys have maintained that Chutkan's order infringes upon the former president's First Amendment rights, claiming it acts as “muzzle the core political speech of the leading candidate for President at the height of his reelection campaign,” while allowing “purported witnesses” to “routinely attack him.” Smith's team of prosecutors countered by observing Trump's social media activity since the gag order was put in place, claiming that “criticisms of this prosecution” without “targeting witnesses and public servants like court staff and career prosecutors, and even their families, with inflammatory language likely to result in harassment, intimidation, and threats.”
MAGA lawyer John Sauer on Monday claimed that the gag order “sets a terrible precedent” and is “categorically unconstitutional," and alleged that it is founded upon speculation, according to The Washington Post. “All the evidence” of harassment “goes back three years ago to a totally different dynamic," he said." There must be imminently impending danger. We are nowhere near that in this case."
“What’s described as threat here is core political speech, I cannot emphasize that enough,” Sauer said. “It is rough and tumble. It is hard-hitting in many situations, but it absolutely is core political speech.”
“A year ago, we would be in the middle of the campaign,” Sauer said.
“When are we not in the middle of a campaign?” appeals court judge Patricia Millett asked. “If it was last November, would he still be engaged in political speech?”
“I think the gag order would be unconstitutional,” Sauer replied.
Sauer also argued that the government and Chutkan may not use a “heckler’s veto” against a defendant to quell his speech. “If you engage in any scrutiny at all in a heckler’s veto context, you’re going to shut down every speaker that ever speaks," the lawyer said. As the Washington Post noted, a heckler's veto is "shorthand for someone shutting down, or shouting down, someone else’s speech without proper consideration," and has cropped up during free speech disruptions on college campuses.
Politico's Kyle Cheney reported after the questioning that it seemed "pretty clear the panel is not thrilled with Trump's position on the gag order."
"Trump's position is basically that he must commit criminal witness intimidation/tampering to become subject to a gag order, a position the judges say is not tenable," he wrote, later adding that the judges appeared inclined to narrow but uphold Chutkan's gag order.
Seems pretty clear the panel is not thrilled with Trump's position on the gag order. Trump's position is basically that he must commit criminal witness intimidation/tampering to become subject to a gag order, a position the judges say is not tenable.
— Kyle Cheney (@kyledcheney) November 20, 2023
Former acting Solicitor General Neal Katyal tweeted that the arguments were "not going well for criminal defendant Donald Trump" and that Sauer was "struggling" to answer the judges' questions.
"Can’t give an example of a statement that would ever meet his standard. His argument makes nonsense of everything the Supreme Court has said about gag orders," he wrote.
His lawyer is struggling. Can’t give an example of a statement that would ever meet his standard. His argument makes nonsense of everything the Supreme Court has said about gag orders.
— Neal Katyal (@neal_katyal) November 20, 2023
Former federal prosecutor Renato Mariotti argued that Sauer was "deliberately taking an extreme position."
"The judges are considering whether to modify Judge Chutkan’s gag order or if she could make factual findings to support her order," Mariotti wrote on X/Twitter. "Trump’s lawyer doesn’t want the order modified. He wants to fight the order as-is."
Trump’s lawyer is deliberately taking an extreme position.
— Renato Mariotti (@renato_mariotti) November 20, 2023
The judges are considering whether to modify Judge Chutkan’s gag order or if she could make factual findings to support her order.
Trump’s lawyer doesn’t want the order modified. He wants to fight the order as-is.
"Trump’s lawyer relentlessly fighting the court’s hypotheticals and leaving the judges plainly frustrated," former U.S. Attorney Harry Litman tweeted during the questioning. "Not going well for [him]."
