Special Counsel Jack Smith (left) seen in Washington, DC, on August 1, 2022, and former President Donald Trump (November 8, 2022, in Palm Beach, Florida).
A panel of federal appeals court judges in Washington, D.C., ruled Monday that the former president was unconstitutionally silenced by a gag order in Donald Trump’s criminal election interference case. He was highly skeptical of the lawyer’s claims.
But the justices also expressed concerns about the scope of the gag order, asking federal prosecutors where to draw the line on Trump’s speech.
The hearing in the D.C. Circuit Court of Appeals is the latest clash over combative rhetoric from Republicans on a number of criminal and civil cases. Prosecutors and judges in those cases warned that Trump’s attacks on social media, at campaign rallies and outside court could threaten the safety of those involved and the cases themselves.
Trump was granted a gag order last month by U.S. District Judge Tanya Chutkan, who said his comments targeting those involved in the case posed a “sufficiently serious threat to the integrity of the proceeding.” .
Chutkan’s gag order prohibits President Trump from making any public statements about prosecutors or witnesses that are “reasonably foreseeable” regarding the content of their testimony. Trump is charged with illegally conspiring to overturn his loss to Democratic President Joe Biden in the 2020 presidential election.
The three-judge panel questioned whether Trump was seeking to be treated differently than other criminal defendants because of his current status as a 2024 presidential candidate. and aggressively pursued Trump’s lawyers for more than 75 minutes.
The justices also suggested that the Supreme Court’s decision upheld the ban.
One judge berated attorney D. John Sauer, who continued to resist answering her hypothetical questions about the order.
After calling her position “elusive,” Judge Cornelia Pillard told Sauer at one point, “I don’t hear that you value any interest in a fair trial.”
Sauer responded that in order to justify President Trump’s restrictions on speech, “the content would have to be very convincing.”
Lawyers for special counsel Jack Smith, who is prosecuting Trump, also faced intense questioning after claiming that people targeted by Trump’s social media posts were repeatedly threatened and harassed.
The justices asked their attorney, Assistant Special Counsel Cecil Vandevender, how to balance the defendant’s right to free speech with the interest of having a fair trial.
Justice Patricia Millett stressed the importance of carving out that middle ground with a “careful scalpel” and not “distorting the political arena.”
Two of the appellate judges, Judge Millett and Judge Pillard, were appointed by then-Democratic President Barack Obama. The third person, Bradley Garcia, was nominated by Biden.
President Trump has pleaded not guilty to four charges, including conspiracy to defraud the United States.
Mr. Trump’s lawyers immediately appealed Mr. Chutkan’s order to the D.C. Court of Appeals, especially since Mr. Trump will speak publicly about his legal battles as he runs for president again in 2024. It was argued that this violates the rights of the Article.
An appellate court judge on Nov. 3 temporarily lifted the gag order while considering President Trump’s request for a longer grace period as part of his appeal. They noted that their temporary stay “should in no way be interpreted as a ruling on the merits” of the gag order.
Smith’s team argued that Trump’s comments were intended to intimidate potential witnesses and warned that they could influence the trial’s D.C. jury.
After Mr. Chutkan suspended the gag order last month, Mr. Trump sent a statement suggesting that former chief of staff Mark Meadows, a likely witness, had been coerced into testifying by Mr. Smith.
Chutkan had suspended the gag order while he considered President Trump’s request pending an appeal, but reinstated it in late October.