Washington — A three-judge panel of the federal appeals court appeared Monday ready to uphold a version of alimiting what former President Donald Trump can say about the 2020 election-related case against him in Washington, D.C., and indicated that some aspects of the order could be adapted.
In a lengthy hearing, judges on the U.S. Court of Appeals for the Washington Circuit pushed Trump’s lawyers and special counsel Jack Smith to defend their respective positions on the order imposed by District Judge Tanya Chutkan, who oversees the affair. The order, which is, would block Trump from publicly commenting on individual prosecutors, court staffers or potential witnesses linked to the prosecution. Trump asked the appeals court to overturn or suspend the hush order.
The special counsel — who was present at Monday’s hearing — hadto impose even broader restrictions on the former president’s pretrial speech, alleging that his public comments threatened the proper administration of the judicial process and could inspire violence from his supporters.
Chutkan’s order did not go as far as prosecutors had requested and specifically allowed Trump to criticize the charges against him and even speak out against the judge herself. Chutkan nonetheless said she was treating the former president like any other defendant by preventing him from speaking publicly against those who might testify against him at trial, citing both legal and security concerns.
Trump is charged with four federal counts, including conspiracy to defraud the United States, stemming from his alleged attempt to overturn the results of the 2020 presidential election and has pleaded not guilty. He did not attend Monday’s hearing.
Chutkan’s order, Trump’s lawyers wrote in court filings, “muzzled President Trump’s primary policy speech during a historic presidential campaign” and was “viewpoint-based,” and not on recent threats. But Smith’s team has increasingly worked to link Trump’s past public rhetoric to threats of violence, alleging that his supporters’ reactions to his critics could affect how the trial, currently scheduled for March 2024, would take place.
Trump, the special counsel asserts, is aware that his language could incite others to act and “seeks to use this well-known dynamic to his advantage.”
During Monday’s hour-long hearing, D. John Sauer, Trump’s lawyer and former Missouri solicitor general, told the appeals court that the silence order is “a filter for political speech by basis” between the former president and voters during the campaign, because it is “an almost complete overlap between the issues of the political campaign and those of the case.”
“What you have here is a justification that this speech…could one day incite a random third party to engage in action that could result in” threats against witnesses, Sauer argued, arguing that the legal standard for restricting freedom of expression cannot be based on future possibilities.
For more than an hour, the judicial panel questioned the former president’s lawyer about the need to balance a political candidate’s First Amendment rights with the protection of due process of law. During their questions, the panel expressed the need to determine a legal standard test that could be applied.
“You make some very important points about political speech,” said Judge Patricia Millett, appointed to the bench by President Barack Obama. “But the Supreme Court says there should be a balancing test between protecting the criminal trial process.”
That balancing act, the judges said Monday, must weigh the interests of a fair and impartial trial and the right to freedom of expression.
Sauer argued for applying a strict “clear and present danger” standard and said the special prosecutor had not yet proven that there was a clear and immediate danger to the trial or to witnesses related to the Trump’s speech.
“This order is intentionally prophylactic,” said Judge Cornelia Pillard, also an Obama appointee. She argued that Chutkan’s order of silence was intended to protect against future conduct, not to punish past conduct. The committee said the “clear and present danger” standard was probably too extreme in this case.
Millett sometimes argued with Sauer over hypothetical situations she posed to challenge Trump’s argument, including phone calls to potential witnesses, public statements or messages alluding to their cooperation with prosecutors.
Trump’s lawyer avoided considering some hypothetical situations due to a lack of context, but he admitted that some scenarios would likely require restrictions.
Sauer argued that the special counsel’s case against Trump received immense attention from the media and the former president himself, with limited evidence showing that threats increased following his own remarks.
Millett also questioned whether Trump’s language about prosecutions was actually part of his campaign for the White House or whether it was “political speech intended to derail or corrupt the criminal justice process “. Trump has“disturbed” and weighed in on reports that former White House chief of staff cooperated with the investigation.
The justices’ desire to find balance in the order was evident Monday during their questioning of the special counsel’s team. They seemed somewhat skeptical of the silence order’s restrictions on denunciations by the special prosecutor and his team.
“We need to use a careful scalpel here and not get into a real distortion of the political arena,” Millett argued.
Prosecutor Cecil VanDevender argued that Trump’s language “poses a significant and immediate risk” to the just administration of justice.
“There is a trend, there is a very clear dynamic,” he said, asserting that there is a “causal link” between Trump’s language and the public’s threats.
Millett disputed the special counsel’s assertion that prosecutors’ names should be excluded from Trump’s public comments.
“Why can’t the accused say that ABC – whoever is prosecuting – is biased?” she asked. VanDevender responded that doing so would increase the risk of being targeted.
The lawyer for the special prosecutor’s office also argued that potential witnesses, including public figures who have spoken out against Trump, should be protected from being targeted because future witnesses who have not yet come forward could also be discouraged from doing so.
The appeals court panel appeared concerned about the clarity of Chutkan’s silence order and how it would be enforced, analyzing the language as “untruthful” after the special counsel team said she would probably disagree with this label to a witness.
The arguments mirror those in Trump’s civil fraud trial in New York, where a judge issued a gag order barring the former president from targeting members of the judge’s staff.
Sauer alluded to the case and noted that a silence order was suspended by a New York appeals court last week.
“We’re not in New York. We’re not in New York,” Pillard replied emphatically.
Trump’s motion to remain silent received support last week from more than a dozen Republican attorneys general who echoed his argument that restrictions on his speech unduly affect voters in primary states.
Led by Iowa’s attorney general, the group — at least six of which have supported Trump — wrote in an amicus brief: “Our citizens have an interest in hearing from the major political candidates in this election. President Trump’s Free Speech Rights.
Trump also found an unlikely ally in the American Civil Liberties Union, which launched numerous legal challenges to Trump’s policies while he was in office. In the friend-of-court brief that the ACLU sought to submit to the district court — the request to file the brief was ultimately denied — the organization said Chutkan’s order was unconstitutionally vague and d ‘an unacceptable scope.