Former President Donald Trump speaks to a crowd of supporters in Iowa.
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Trump’s legal team argued against his gag order in his upcoming election interference trial.Prosecutors allege Trump has been intimidating possible witnesses in the upcoming trial.His lawyer said that depends on “the context.”
A panel of three judges on Monday appeared highly skeptical of arguments from Donald Trump’s legal team seeking to revoke a gag order that bars him from attacking potential witnesses in his election interference criminal case.
D. John Sauer, Trump’s attorney in the hearing before the United States Court of Appeals for the DC Circuit, took a highly expansive view of the former president’s First Amendment rights.
Depending on “the context,” Sauer argued, Trump would be permitted to pressure possible witnesses not to cooperate with prosecutors.
Judge Patricia Millet, an Obama appointee on the panel, repeatedly pressed Sauer to explain if Trump could ever be restricted from saying anything. She appeared annoyed when he avoided articulating any such standard.
“So is it your position that if he communicates through a social media post: ‘Hey, Witness X, I know the prosecutor is bothering you, trying to get you to say bad things about me — be a patriot, don’t act treasonously, don’t cooperate’—” she began to ask Sauer.
Sauer interrupted the judge, saying it would “depend on the context” if it would be OK for Trump to pressure a witness in a public setting, and declined to answer the question directly.
After several minutes of back-and-forth with the judge — What if it was a “fair response” to something Witness X said? What if it was in the “political arena”? What if it was about former Vice President Mike Pence, who until recently challenged Trump for the 2024 Republican presidential nomination? — Sauer finally conceded that there were possible circumstances where Trump would be violating the order.
“It seems like the way you’ve described it, that would be a violation,” Sauer said.
“But with the caveat that some additional facts would lead to a different conclusion,” Sauer rushed to add, interrupting another question from the judge.
The appellate court hearing came after US District Judge Tanya Chutkan found Trump violated an earlier gag order setting limits on his speeches and social media posts attacking witnesses, lawyers, and court staff.
Free speech rights are often curtailed in the context of criminal cases to ensure the integrity of the proceedings. Judges regularly limit parties from talking about evidence before they’ve been admitted to the court record during a trial. They can also impose surveillance measures and send defendants to jail if they believe a defendant has violated orders or tampered with witnesses, as a New York judge did over the summer in FTX founder Sam Bankman-Fried’s criminal case.
“Legion of the cases that there is no right of the defendant to try his case in the media,” Judge Cornelia Pillard told Laura in Monday’s hearing. “That’s what the court is for.”
Trump’s lawyers said his free speech rights Trumped everything else
Prosecutors in the case — one of four pending criminal cases against the former president — accused Trump of engaging in a criminal conspiracy to defraud the government and obstruct Congress through his attempts to block the certification of the 2020 presidential election.
Those efforts, according to Justice Department Special Counsel Jack Smith, culminated with his supporters attacking the US Capitol on January 6, 2021.
Trump has cast the prosecution — and all other cases against him — as politically motivated. Chutkan’s initial gag order, issued on October 17, explicitly allowed Trump to criticize the prosecution on those terms, and to criticize the Justice Department, but not to make statements that would lead to harassment or threats. In an October 29 opinion, she found Trump would have violated her order through a Truth Social missive characterizing his former chief-of-staff Mark Meadows as among a list of “weaklings and cowards” if he cooperated with prosecutors in their investigation.
Trump’s attorneys have sought to get rid of the gag order entirely, arguing that it infringes on his First Amendment rights, which they say is particularly heightened since he is the frontrunner for the Republican nomination in the 2024 presidential election. Chutkan scheduled a trial for March.
“What they’ve described as ‘threats’ is actually, under the Supreme Court’s jurisprudence, pure political speech,” Sauer said. “It is rough and tumble, it is hard-hitting in many situations, but it absolutely is core political speech.”
Justice Department Special Counsel Jack Smith.
MANDEL NGAN/AFP via Getty Images
At the same time, the judges noted, Trump’s media megaphone heightens the risk of his statements. His remarks on social media and at rallies reach the ears of millions of supporters, some of whom have issued threats against people involved in his cases.
“The question of whether it is, in fact, political speech, or whether it is political speech aimed at derailing or corrupting the criminal justice process,” Millet said. “You can’t simply label it that.”
Monday’s hearing was overseen by two appointees of former President Barack Obama and one from President Joe Biden.
Millet, one of the judges on the panel, repeatedly expressed frustration with Sauer, who said Trump’s First Amendment rights were so broad that he could even comment on particular jurors during a criminal trial. But, Sauer conceded, Trump would not be permitted to tweet out their addresses.
While the judges seemed inclined to uphold most of Chutkan’s ruling, they appeared uncomfortable with its scope.
Chutkan forbade Trump from attacking Smith personally, which rubbed some judges the wrong way given his stature as special counsel.
And they took issue with an argument from Cecil Woods VanDevender, representing the Justice Department, who said that Trump couldn’t disparage former Attorney General Bill Barr, who had criticized Trump but may be a witness in the trial.
“We’ve got to use a careful scalpel, and not go into skewing the political arena, don’t we?” Millet said.
The gag order in the election interference case is separate from a gag order in another ongoing civil trial against Trump in New York.
In that case, Judge Arthur Engoron has set particular limits on Trump attacking his staff. He found that Trump violated it earlier in November, though an appeals court on Thursday temporarily lifted the order.
Correction: November 20, 2023 — An earlier version of this story misidentified the attorney who argued for Trump in the hearing. It’s D. John Sauer, not John Lauro.