Skeptical judges grill Trump lawyers and prosecutors on gag order in election interference case

Lawyers for Donald Trump and the Justice Department were squaring off Monday in a federal appeals court, where the former president’s lawyers are arguing that his constitutional rights have been violated by a gag order barring him from disparaging witnesses and prosecutors associated with the election interference case.

The two sides began presenting their arguments in Washington before a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit shortly after 9:30 a.m. ET, with special counsel Jack Smith, who made the decision to charge Trump, sitting in the front row. The hearing was expected to last about an hour, but it has gone on for at least twice as long because of the large number of questions for both sides from the sceptical judges.

D. John Sauer, the Trump lawyer, contended that if the gag order was lifted, it would create a “horrible precedent” for “restrictions against core political speech.”

The judges—two nominated by former President Barack Obama and one by President Joe Biden—issued an order this month, pausing the gag order until they could hear arguments in the appeal. Pressed by one about prosecutors’ argument that Trump’s public comments about witnesses and officials have led to individuals being “threatened and harassed,” Sauer said, “That’s all based on evidence that’s three years old.” He said Trump has commented on the case “incessantly,” and there’s no evidence that anyone in the election interference case has been threatened.

When asked if Trump’s political remarks needed to be balanced with worries about threats, Sauer responded that his client should have “absolute freedom” to express his opinions.

The judges seemed sceptical of that argument but also had questions for Smith’s office about the scope of the gag order, including how it protects Smith and his team. Smith’s attorney, Cecil VanDevender, told the judges that his office has “been subject to multiple threats” and “intimidating communication” after Trump issued “inflammatory posts” about the special counsel. One of the judges said Smith likely has “thick enough skin” to not be intimidated by such posts.

The protection of potential witnesses like retired Gen. Mark Milley, the former chairman of the Joint Chiefs of Staff, who has been harshly critical of Trump, from criticism was also called into question by the same court. She pointed out that the day before, Trump had criticised Milley harshly in an interview. VanDevender stated that Trump’s posts might have an impact on other witnesses who are appearing, in response to the judges’ scepticism about how they might affect Milley’s testimony.

Trump has argued in a similar manner that he should not have any restrictions on his speech as a presidential candidate.

“The Gag Order appoints an unelected federal judge to censor what the leading candidate for President of the United States may say to all Americans,” Trump said in a statement Friday. “No court has ever upheld a gag order on core political speech at the height of a campaign,” he added, calling for the ruling to be “speedily reversed.”

The special counsel’s office prosecutors contend that the order is required for a fair trial and that there was a risk of witness intimidation and harassment as a result of Trump’s social media posts and public remarks regarding potential witnesses and their attorneys.

The case is being overseen by U.S. District Judge Tanya Chutkan, who last month issued an order in agreement with the prosecution.

“Undisputed testimony cited by the government demonstrates that when the defendant has publicly attacked individuals, including on matters related to this case, those individuals are consequently threatened and harassed,” Chutkan wrote in an Oct. 17 ruling that cited Trump’s comments about how some people involved in the case “are liars, or ‘thugs,’ or deserve death.”

“The court finds that such statements pose a significant and immediate risk that (1) witnesses will be intimidated or otherwise unduly influenced by the prospect of being themselves targeted for harassment or threats; and (2) attorneys, public servants, and other court staff will themselves become targets for threats and harassment,” the judge wrote.

Her gag order prohibited Trump “from making any public statements or directing others to make any public statements” that target likely witnesses and the substance of their testimony, as well as the special counsel, his staff, and employees of the court.

But it also made some exceptions by explicitly allowing Trump to continue criticising the Biden administration and the Department of Justice in connection with the case, to argue that the case against him is politically motivated, and to assert his innocence. Chutkan also said she would not prohibit “statements criticising the campaign platforms or policies of the defendant’s current political rivals, such as former Vice President Pence,” a then-presidential candidate who’s likely to be called as a witness for the prosecution when the case goes to trial in March.

Trump’s attorneys appealed the order, arguing that Chutkan was acting as “a barrier between the leading candidate for president, President Donald J. Trump, and every American across the country” and that the court has “no business inserting itself into the presidential election.”

“President Trump’s speech about this case is quintessential campaign speech,” and the “First Amendment does not permit the district court to micromanage President Trump’s core political speech,” his lawyers argued.

Prosecutors countered that Trump was seeking special treatment and urged the appeals court not to give it to him.

In their filing, government attorneys said Trump maintains “that it is not enough for him to be able to defend himself in court, publicly profess his innocence, criticise the presiding judge, characterise the prosecution as politically motivated, and criticise the platforms and policies of his political opponents. He must also be allowed to engage in a concerted campaign of targeting witnesses and public servants like court staff and career prosecutors, and even their families, with inflammatory language likely to result in harassment, intimidation, and threats.”

“No other criminal defendant or defence attorney could credibly make such a claim, and the Court should decline the defendant’s request to fashion a special rule solely for him,” they added.

This is not Trump’s first time being hit with a gag order, nor is it the first time he’s appealed one.

The New York judge presiding over Trump’s ongoing $250 million civil fraud trial imposed a gag order last month after Trump smeared the judge’s law clerk in a social media post. After an appeal, a state court temporarily lifted the gag order until the matter can be considered by a full panel of judges later this month.