Appeals court seems likely to narrow, but uphold, gag order against Trump

After a day of hearing arguments by an attorney for Donald Trump along with an attorney from the office of special counsel Jack Smith, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit did not seem ready to strike down a gag order issued in a lower court. However, they did give indications that the order may be significantly narrowed in its effect on Trump.

In October, Judge Tanya Chutkan placed a gag order on Donald Trump that restricted his ability to target court staff, potential witnesses, and members of the office of the special counsel. Trump was still free to make all the remarks he wanted about the unfairness of the trial, to spread false claims about President Joe Biden initiating the case, and to demean both the city and citizens of Washington, D.C. He just couldn’t name-drop people involved in the case and expose them to danger from Trump supporters who have repeatedly engaged in acts of violence.

Four days later, the appeals court put the gag order on ice, freeing Trump to resume his attacks on Smith, Chutkan, and potential witnesses. Trump’s legal team followed this with a court filing in which they argued that Chutkan had inserted herself into the 2024 election and requested that the appeals court reverse the gag order. But based on the questioning from the judges, the hearing doesn’t seem to have gone that well for Trump.

The three judges hearing arguments were Patricia Millett, Cornelia Pillard, and Bradley Garcia. All three were appointed by Democratic presidents. Millett and Pillard have both issued important rulings in response to issues around Jan. 6 defendants and Trump’s handling of classified documents.

In this hearing, Trump’s legal team was led by former Solicitor General of Missouri John Sauer. Sauer began by arguing that Chutkan’s gag order is “unprecedented and it sets a terrible precedent for future restrictions on core political speech” because Trump is not an ordinary defendant but “also in a campaign for public office.”

Sauer argued against considering Trump’s actions on Jan. 6, or in the month following his loss in the 2020 election, because those events are from three years ago and should not be used to predict what Trump might do in the current situation—which seems like the kind of consideration anyone with a record of violent statements would love to receive.

However, in the first round of questioning by the judges, Sauer claimed the gag order would still be unconstitutional even if Trump weren’t running for office.

Millett: “You think the outcome should be exactly the same whether or not there’s a political campaign underway.”

Sauer: “Yes.”

This seemed to negate most of his opening argument, which leaned heavily on the idea that Trump was a presidential candidate and that restrictions on his speech should be required to meet a higher standard than for ordinary defendants.

The judges also pointed out that while Sauer had claimed Chutkan couldn’t issue a gag order out of concern that one of Trump’s supporters might one day act on his complaints, these fears were far from theoretical. Trump supporter Abigail Jo Shry has already been charged with making racist threats against Chutkan.

Millett: “The day after he said, ‘If you come after me, I’m coming after you,’ that threat was issued.”

Sauer insisted there was no evidence that Shry had read Trump’s post on Truth Social.

Through much of the questioning, it was Millett who most readily interrupted Sauer when she felt he was being repetitious or avoiding the question. When Sauer claimed again that the gag order represented a violation of Trump’s free speech rights and tried to make a broad claim about the threat this represented to the First Amendment, Millett made what might be the most significant statement of the day in terms of indicating the appeals court’s position:

Millett: “We’re not shutting down everyone who speaks. … This is only affecting the speech temporarily during a criminal trial process by someone who has been indicted as a felon.”

Sauer continued to argue that while what he called “criminal speech” could be restricted, Trump’s complaints about Chutkan’s court, the special counsel’s office, and the Department of Justice were “core political speech that’s part of campaign speech.” However, all of this seemed contrary to his earlier statement that Trump’s status as a candidate didn’t affect the case. By the time he sat down, Sauer’s scheduled 20 minutes at the podium had stretched to almost 80 minutes.

Arguments in favor of the gag order were handled by assistant special counsel Cecil VanDevender. He noted that Trump had a “well-established practice of using his public platform to target his adversaries” and that this “poses a significant and immediate risk” to the trial proceedings.

Millett was also the most blunt of the three judges in questioning VanDevender. She expressed concern that the government wasn’t giving “much balance at all to the First Amendment’s vigorous protection of political speech” and suggested that prosecutors and other officials should be willing to withstand inflammatory language.

Millett: “It seems to me to contradict Supreme Court precedent and seems to me sort of a very troubling lack of balance on a free speech side on the part of the prosecution in this case.”

In subsequent discussions, both Millett and Pillard seemed to be hinting that they might move to narrow Chutkan’s order by striking the special counsel’s office from the list of those Trump wasn’t allowed to attack. Speaking of Smith, Pillard said, “Surely he has a thick enough skin” to withstand whatever Trump throws at him. In later questioning, VanDevender agreed that “classic political speech directed toward the government” by Trump would be protected speech.

However, the judges also seemed to indicate they weren’t about to dismiss the gag order altogether. In a series of questions to VanDevender, they raised concerns about threats to witnesses and jurors, including potential doxxing of the jurors by Trump. Millett noted this has a “knock-on effect” with Trump loyalists that could lead to “direct efforts at threatening and harassing” the jurors. Millett asked if any technical solutions might stop this without the need for a gag order, but VanDevender responded that he wasn’t aware of any such technology.

Eventually, VanDevender stepped away from the stand in just under an hour.

There is no indication of how long it will take the appeals court to make their ruling, and no certain way to tell how that ruling will go. However, based on their statements and questions, it would seem the judges were ready to remove some of the restrictions on Trump’s speech—in particular, those concerning prosecutors and other members of the special counsel’s office—while leaving the remainder of the gag order in place.

This is one of two gag orders that Trump’s legal team is battling. In Trump’s New York fraud trial, Judge Arthur Engoron has also imposed a gag order on Trump to prevent him from making statements about court staff. That order came after both Trump and his attorneys made false claims about a court clerk. Engoron has fined Trump $15,000 for two violations of that order. However, that order was stayed by New York State’s intermediate appeals court this past Thursday and will be the subject of an upcoming hearing.

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