Special Counsel Jack Smith, left, seen in Washington, DC, on August 1, and former President Donald Trump, seen in Palm Beach, Florida, on November 8, 2022.
A panel of federal appeals court judges in Washington, D.C., was highly skeptical of arguments made Monday by a lawyer for Donald Trump that the former president is being unconstitutionally silenced by a gag order in his criminal election interference case. .
But the justices also raised concerns about the scope of the gag order and asked a federal prosecutor about where to draw the line around Trump’s speech.
The hearing at the U.S. Court of Appeals for the D.C. Circuit is the latest showdown over the Republican’s bellicose statements about his numerous criminal and civil cases. Trump’s prosecutors and judges in those cases have warned that his attacks — on social media, at campaign rallies and outside of court — could threaten the safety of those involved and the proceedings themselves.
Trump was given a gag order last month by U.S. District Judge Tanya Chutkan, who said his statements directed at people involved in the case posed “sufficiently serious threats to the integrity of these proceedings.”
Chutkan’s gag order prohibited Trump from making public statements to his prosecutors and “reasonably foreseeable” witnesses about the substance of his testimony. Trump is accused in the case of illegally conspiring to overturn his 2020 election loss to President Joe Biden, a Democrat.
The three-judge panel grilled Trump’s attorney for more than 75 minutes as he questioned whether Trump was asking to be treated differently from other criminal defendants because of his current status as a 2024 presidential candidate.
The justices also suggested that Supreme Court decisions allow for the ban.
A judge snapped at the attorney, Mr. John Sauer, when he continually refused to answer his hypothetical questions about the order.
“I don’t hear you attach any importance to the interest of a fair trial,” Judge Cornelia Pillard told Sauer at one point, after calling his position “elusive.”
Sauer responded that “the presentation would have to be extraordinarily compelling” to justify restricting Trump’s speech.
A lawyer for special counsel Jack Smith, who is prosecuting Trump, also faced tough questioning as he argued that people have been repeatedly threatened or harassed after being attacked over Trump’s social media posts.
The judges questioned the attorney, Special Deputy Prosecutor Cecil VanDevender, about how to balance the defendants’ free speech rights with the interest of conducting a fair trial.
Judge Patricia Millet stressed the importance of finding that middle ground with a “careful scalpel” and not “biasing the political arena.”
Two of the appeals judges, Millet and Pillard, were nominated to their seats by then-President Barack Obama, a Democrat. The third, Bradley García, was nominated by Biden.
Trump has pleaded not guilty to the four-count indictment charging him with crimes including conspiracy to defraud the United States.
Trump’s lawyers quickly appealed Chutkan’s order to the D.C. appeals court, arguing that it violates Trump’s First Amendment right to speak publicly about his legal battles, especially now that he is running for president again in 2024.
On Nov. 3, appeals judges temporarily lifted the gag order while they considered Trump’s request for a longer pause as part of his appeal. They noted that his temporary stay “should in no way be interpreted as a decision on the merits” of the gag order.
Smith’s team has argued that Trump’s statements are intended to intimidate potential witnesses and warned that they could affect the D.C. jury for the trial.
After Chutkan temporarily lifted the gag order last month, Trump sent statements suggesting Smith had forced his former chief of staff, Mark Meadows, a likely witness, to testify.
Chutkan, who had suspended the gag order to weigh Trump’s request for a stay pending appeal, reinstated it in late October.