A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit indicated it could restrict the order barring the former president from attacking individual prosecutors such as special prosecutor Jack Smith, or calling potential witnesses against him “liars” in the heat of next year’s campaign. But they noted that Trump was “not above the law” and that he was not exempt from criminal prohibitions against witness intimidation or tampering, including as conditions of his release on bail before his trial.
“There’s a balance to be struck here, and it’s a very difficult balance,” said Judge Patricia A. Millett, a senior member of the panel that heard Trump’s expedited appeal. “We need to use a careful scalpel here and not get into a real distortion of the political arena, right?”
Subscribe to The Trump Trials, our weekly newsletter on Donald Trump’s four criminal cases
U.S. District Judge Tanya S. Chutkan imposed the order on October 17, barring Trump and all interested parties in the case from making public statements targeting the prosecution or defense teams, court staff, potential witnesses or their testimony. She said Trump could still verbally attack President Biden and claim his prosecutions are politically motivated, as long as he doesn’t attack individual prosecutors. He could also attack the campaign platforms and policies of Republican presidential rivals who were witnesses in the case, a category that included former Vice President Mike Pence before ending his campaign.
Trump’s status as the leading presidential contender “does not give him carte blanche to vilify and implicitly encourage violence against public officials who are simply doing their jobs,” nor to subject witnesses to acts of intimidation or harassment , said Chutkan.
The silence is suspended at least until a ruling is issued on the appeal by Millet and judges Cornelia TL Pillard and Bradley Garcia – the first two appointed by President Barack Obama in 2013 and the second by Biden in May . Their decision could be appealed to the full court of appeal or to the Supreme Court.
Similarly, a New York state appeals court temporarily stayed another silence order issued in a civil case against Trump while he appealed. He is separately awaiting trial in three other criminal cases: a federal case in Florida for allegedly mishandling classified documents after his presidential election. the warrant ended and hampered government efforts to recover restricted materials; a state case in Georgia, for alleged obstruction of elections in 2020; and a case in New York state, for alleged fraud related to a hush money payment during the 2016 election. Trump has denied any wrongdoing.
Track Donald Trump’s criminal cases and where they stand
During nearly two and a half hours of oral arguments Monday, well beyond the scheduled time, Millett, Pillard and Garcia struggled to juggle competing constitutional interests while protecting Trump’s “fundamental political speech,” on the one hand, and ensuring that the government, defense and public get a fair trial.
Judges seemed determined to keep Trump in custody to the same standards of behavior as the other accused, although they were concerned that such a standard might be too broad and unfair in this case. In trying to apply the few precedents available on the issue – US courts have rarely addressed the issue of silence orders – the justices noted that, in some ways, the entire topic was unexplored given the role social media in modern life.
As Millett succinctly asked: Is this fundamental political speech, or “political speech intended to derail or corrupt the criminal justice process?” »
Deputy Special Counsel Cecil VanDevender alleged the latter, asserting a “dynamic” or “pattern” on Trump’s part, going back years, in which he rhetorically targets his opponents, who then become “prone to harassment, threats and intimidation. He said the former president was trying to undermine the justice system and its prosecutions by launching a series of “derogatory and inflammatory attacks” against participants in the case, including potential witnesses.
The special counsel cited Trump’s public statements that Pence was “(making) up stories about me that are absolutely false”; that his attorney general, William P. Barr, “did not do his job” because he was afraid of being impeached; that in the past his chairman of the Joint Chiefs of Staff, Army Gen. Mark A. Milley, was reportedly executed for treason; and that the potential testimony of his former chief of staff, Mark Meadows, was a “(made up) lie” to secure immunity, when “weak and cowards” could do it.
VanDevender also highlighted the August arrest of a Texas woman accused of making death threats against Chutkan, a day after Trump posted following his recent indictment in the case: “IF YOU FOLLOW ME, I’LL COME YOU !
But the justices pressed VanDevender: Didn’t Milley publicly criticize his former boss the day before Trump’s attack, and wasn’t it true that historically the penalty for treason was death? Didn’t Chutkan expect attacks on herself from her order, and couldn’t she be expected to remain impartial despite such attacks? More broadly, are senior government officials not used to the vagaries of public debate, and do they not have “thick enough skin” not to be intimidated by Trump?
Millett raised another concern. What if Trump’s rival candidates invited a potential trial witness, “Mr.
“You can’t call anyone a liar?” » Millett asked incredulously.
The justices were at least as harsh on Trump’s lawyer, D. John Sauer, urging him to acknowledge that his client was not “above the law.” Yes, he acknowledged, under bail conditions long upheld by the Supreme Court, judges can condition a defendant’s provisional release on the need not to communicate with witnesses outside the court. presence of their lawyers.
And under current law, the judges said, they can take “prophylactic” measures to protect participants in the case. “Why must the district court wait until the threats arise, rather than taking reasonable steps in advance? » asked Garcia.
But Sauer said Chutkan’s order went further and was “categorically unconstitutional,” installing “a single federal judge as a filter” between a presidential candidate and American voters.
Sauer said the order was a “radical departure” from Supreme Court precedent allowing restrictions on a candidate’s political speech at the height of a campaign only when the speech would present a clear and present danger or a “real threat” of immediate violence. In contrast, Chutkan’s order would apply to statements that pose “a significant and immediate risk” of threats or harassment to participants in the case. Generally, courts may impose silence orders when there is a “substantial likelihood of significant harm” resulting from public statements by interested parties.
Pillard asked whether Trump’s defense would agree to a silence order that, instead of prohibiting statements “targeting” participants in the case, would prohibit “comments.” about witnesses due to “their expected testimony”, floating language for a possible narrowing of the Chutkan order.
Sauer responded that there remained the tricky question of whether a court would interpret Trump’s or the speaker’s intentions.
Sauer also challenged the logical and factual basis of the government’s allegations, rejecting the assertion that Trump’s statements incite others to cause actual harm. Holding Trump responsible for the unanticipated and unintentional action of any random supporter was tantamount to granting a “heckler’s veto” to his free speech, a principle that the Supreme Court has long rejected and against which the ACLU has warned in the matter of Trump’s silence order.
Trump’s defense said his case was inextricably and “deeply intertwined” with his political candidacy, arguing that he should be allowed to support his claims that his prosecution was politically motivated and biased.
Millett recognized the complexity. Trump’s rhetoric “isn’t the way I want my kids to talk,” she said at one point, “but that’s really not the point.”