WASHINGTON — A federal appeals court appeared poised Monday to reimpose at least some restrictions on Donald Trump’s speech in his landmark election tampering case. But the justices wrestled with how to craft an order that wouldn’t infringe on the former president’s free speech rights or prevent him from defending himself on the campaign trail.
The three judges on the panel asked skeptical and at times aggressive questions of lawyers on both sides as they weighed whether to reinstate a trial judge’s order barring Trump from making inflammatory comments against prosecutors, potential witnesses and court officials.
The justices raised a litany of hypothetical scenarios that could arise in the coming months as they considered how to strike a balance between an order that protects Trump’s First Amendment rights and the need to protect “the criminal trial process and its integrity and its function to finding the truth.”
“There’s a balance that needs to be struck here, and it’s a very difficult balance in this context,” Judge Patricia Millett told Cecil VanDevender, an attorney with the office of special prosecutor Jack Smith. “But we have to use a careful scalpel here, and not get into some sort of warping of the political arena, right?”
VanDevender responded that he agreed, but said he believed the gag order imposed last month struck the appropriate balance.
The court did not immediately rule, but its questions left open the possibility of narrowing the gag order, setting parameters for what Trump, as both a defendant and the front-runner for the 2024 Republican presidential nomination, can and cannot say at trial as the date approaches . Trump’s team has signaled it will fight any Supreme Court restrictions.
Regardless of the outcome, the stakes are high given the volume and intensity of Trump’s public comments on the case, the massive public platform he maintains on social media and on the campaign trail, and the limited legal precedent for restricting the speech of political candidates — not to mention The White House – who are accused of criminal offenses.
In a sign of the significance of the argument, Special Counsel Smith himself was present, sitting in the front row of the courtroom in a building just a few blocks from the US Capitol stormed on January 6, 2021 by rioters motivated by Trump’s false claims about the election that he lost to Democrat Joe Biden.
Monday’s arguments lasted nearly two and a half hours, with Trump attorney D. John Sauer fielding most of the questions as he pressed his case that the gag order was too vague and unconstitutional.
“The order is unprecedented and sets a terrible precedent for future restrictions on mainstream political speech,” Sauer said. He described it as a “predator veto,” unfairly relying on the theory that Trump’s speech might someday inspire others to harass or intimidate his targets.
“They cannot make a causal link from any post on social media to a threat or harassment when we have media coverage of this case,” Sauer told the court.
But these points were received coolly by the court.
Judge Brad Garcia pressed Sauer to explain why the court should not take preemptive steps before violence materializes against potential witnesses or others.
“This will predictably increase and so will the threats, so why is the district court not justified in taking more proactive measures rather than waiting for new and new threats to emerge and stepping in to protect the integrity of the process?” — Garcia said.
Although Sauer argued that prosecutors did not draw a direct line between Trump’s rhetoric and actual harm, Van Devender pointed out that a Texas woman was charged with making a death threat against the judge in the Trump case, Tanya Chutkan, just one day after Trump in August posted on social media: “If you come after me, I’m coming after you!” Prosecutors cited that episode in their initial request for a ban, saying Trump’s posts had “already influenced the public.”
Another judge hearing the arguments, Cornelia Pillard, sharply questioned Sauer about whether he thought any restrictions on Trump’s speech were permissible, telling him, “I don’t hear you giving any weight to the interest in a fair trial.”
Judge Millett pushed back on Sauer’s argument that Trump was merely engaging in a major political speech.
“The designation as major political speech raises the question of whether it is political speech or speech aimed at derailing the criminal process,” she said.
But judges have also repeatedly wondered where to strike a balance, raising the likelihood that the gag order will eventually be narrowed. At one point, Millett expressed disbelief at the idea that Trump would be unable to respond to criticism from rival candidates in a debate.
“He has to talk miss manners while everyone else is throwing targets at him?” she asked.
The order has had a tumultuous trajectory through the courts since Chutkan imposed it in response to a request from prosecutors, who cited, among other comments, Trump’s repeated dismissal of Smith as “crazy.”
The judge lifted it days after his entry, giving Trump’s lawyers time to argue why his words should not be restricted. But after Trump took advantage of that break with comments that prosecutors say were intended to sway his former chief of staff from testifying, Chutkan reinstated him.
An appeals court later overturned it while hearing Trump’s appeal.
Pillard and Millet were appointed by former President Barack Obama. Garcia joined the bench this year after being nominated by President Joe Biden. Obama and Biden are Democrats.
The four-count indictment against Trump in Washington is one of four criminal cases he faces as he tries to win back the White House in 2024. The case is scheduled for trial next March 4.
He has been charged in Florida, also by Smith’s team, with illegally storing classified documents at his Mar-a-Lago mansion in Palm Beach, Florida. He is also accused in New York state court of making secret payments to porn star Stormy Daniels, who claims she had an extramarital affair with him, and in Georgia of working to undermine that state’s 2020 presidential election. .
He denied any wrongdoing.