Appeals Court Leans Toward Reimposing Restrictions — At Least Partially — In Federal Election Case

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Judges on a federal appeals court appeared skeptical Monday of former President Donald Trump’s argument that a gag order imposed against him in federal court should be thrown out — though they did say it could be too broad as it stands now — suggesting the order could soon be reimposed at least in part, which could subject Trump to potential punishments if he speaks out against political foes.

Key Facts

U.S. District Judge Tanya Chutkan, who’s overseeing Trump’s trial for trying to overturn the 2020 election, imposed a gag order against the ex-president in October that bars him and other parties from making comments that “target” Justice Department Special Counsel Jack Smith or his staff; defense counsel and their staff; any court staff or “any reasonably foreseeable witness or the substance of their testimony.”

Trump appealed that order and a federal appeals court in Washington D.C. temporarily put it on hold until it rules in the case, holding oral arguments Monday before judges determine a ruling.

The panel of judges—which includes two judges appointed by former President Barack Obama and one appointed by President Joe Biden—appeared deeply skeptical of Trump attorney John Sauer’s arguments, questioning him for over an hour and at times becoming obviously frustrated at his “evasive” responses, which required them to pose questions multiple times.

Judges noted that Supreme Court precedent requires there to be a “balancing test” that weighs First Amendment rights against protecting the integrity of a trial by restricting some of a defendant’s speech, pushing back on Sauer’s suggestion that the only way Trump’s speech could be restricted is if there was a “clear and present danger” resulting from his speech, which the attorney argued none of Trump’s comments so far present.

Judge Patricia Millett noted there’s a distinction between campaign speech and speech “aimed at derailing or corrupting the criminal justice process”—undercutting Sauer’s argument that the gag order hurts Trump’s political speech as a presidential candidate, so it should be abolished entirely—noting, “Legion are the cases that say there’s no right of a criminal defendant to try his case in the media, that’s what the court is for.”

Judge Brad Garcia undercut Trump’s arguments that some statements prosecutors cited as presenting a threat were from 2020, noting that those statements are “all about the same subject matter as this case” and that like 2020, as the trial in this case approaches, the atmosphere is going to be “very tense” again and could lead to threats against witnesses.

Contra

Judges weren’t entirely unsympathetic to Trump’s case, saying during their questioning that Sauer had made “very important points” and emphasizing the importance of the right to political speech. The court also questioned prosecutors about whether their arguments weren’t deferential enough to the First Amendment, with Millett saying there was “sort of a very troubling lack of balance on a free speech side on the part of prosecution in this case.” Judges raised hypothetical possibilities like suggesting it wouldn’t be fair if Trump weren’t allowed to talk about certain topics on the presidential debate stage while his political opponents could and “has to speak Miss Manners while everyone else is throwing targets at him,” and criticizing a scenario in which Trump could say a potential witness said things that were untrue, but wouldn’t be allowed to call them a “liar.”

What To Watch For

It’s unclear when the court will rule on the gag order, though Trump has suggested he’ll take his gag order objections to the Supreme Court if the appeals court rules against him. Judges did suggest that any gag order they reimpose would likely be more narrowly tailored as they criticized prosecutors’ arguments for going too far against Trump’s free speech rights as a political candidate, saying they “have to use a careful scalpel here” to prevent “skewing the political arena.” Judges suggested Monday a narrow order could bar Trump from speaking out against witnesses only when he’s responding to them being witnesses in the case. If the gag order is reimposed and Trump violates it, Chutkan’s order The federal case against Trump over the 2020 election is scheduled to go to trial on March 4, 2024. Trump faces four felony counts in the case for conspiracy and obstruction, facing up to 55 years in prison if he were convicted on all charges and given the maximum sentence (which is unlikely). The former president has pleaded not guilty to the charges against him and has moved to have the charges against him dismissed, which remains pending.

Key Background

Chutkan is the first of the judges overseeing Trump’s criminal cases to impose a gag order against him, ruling in October that his statements about parties in the case make them “targets for threats and harassment” and “pose sufficiently grave threats to the integrity of these proceedings that cannot be addressed by alternative means.” The gag order came as Trump has repeatedly blasted prosecutors, judges and public figures who may be witnesses in the case on social media, with prosecutors pointing to such comments to justify the order as Trump calling Special Counsel Jack Smith a “thug” and saying after being indicted, “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” Trump has strongly opposed the gag order, arguing it’s an impermissible infringement on his and his supporters’ First Amendment rights that will hurt his presidential campaign. The Justice Department and Special Counsel Jack Smith, who’s leading the case against Trump, argued in court filings before Monday’s hearing that “there has never been a criminal case in which a court has granted a defendant an unfettered right to try his case in the media, malign the prosecutor and his family, and … target specific witnesses with attacks on their character and credibility.”

Tangent

Chutkan’s gag order is one of two that have been imposed against Trump, along with a gag order on speaking about court staff in his New York civil trial over alleged fraud. Trump has also appealed that order—which has resulted in $15,000 in fines being levied against him—and a state appeals court has similarly paused the order until it can issue a more lasting ruling.

Further Reading

Trump Gag Orders: Here’s Everything The Ex-President Can’t Say In The Cases Against Him (Forbes)

Trump Suggests He’ll Take Gag Order Fight To Supreme Court (Forbes)

Federal Judge Reinstates Trump’s Gag Order In Election Interference Case (Forbes)

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