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A federal appeals court in Washington appeared to signal at a hearing Monday that it would keep in place at least some version of the gag order placed on former President Donald Trump in the criminal case accusing him of plotting to overturn the 2020 election.
But a three-judge panel of the court left open the possibility of adjusting the terms of the order or even narrowing the scope of the people covered by it, including by potentially freeing Trump to attack Jack Smith, the special counsel overseeing the federal cases against him.
The trial judge, Tanya Chutkan, imposed the gag order in October in U.S. District Court in Washington, forbidding Trump from publicly maligning any prosecutors, potential witnesses or court employees involved in the case.
But Chutkan explicitly permitted Trump to criticize the Justice Department, President Joe Biden and herself. She also allowed him to maintain that the prosecution itself was a partisan retaliation against him.
Trump swiftly appealed, with his lawyers arguing that the order was the “essence of censorship” and infringed on his First Amendment rights in the midst of a campaign — one in which he has repeatedly complained that the cases against him are political persecution. The appeals court has suspended the gag order while it weighs the challenge.
At the hearing, the three judges from the U.S. Court of Appeals for the District of Columbia Circuit pushed hard at the argument that Trump’s social media posts should enjoy absolute protection under the First Amendment as examples of “core political speech.” They questioned whether the posts could in fact be something very different: examples of “political speech aimed at derailing or corrupting the criminal justice process.”
The judges also suggested that a gag order could be imposed on Trump as a “prophylactic” measure of protecting people involved in the case from threats or acts of harassment that had not yet occurred. The panel cited a long-standing “dynamic,” reaching back to the 2020 election, in which Trump has mentioned certain people in his posts who later suffered intimidation from others.
“As this trial approaches, the atmosphere is going to be increasingly tense,” said Judge Brad Garcia. “Why does the district court have to wait and see, and wait for the threats to come, rather than taking a reasonable action in advance?”
Each of the three members of the appellate panel assigned to the case was nominated by a Democratic president: Judges Patricia Millett and Cornelia Pillard were both Barack Obama appointees, as was Chutkan to the district court. Garcia was appointed by Biden.
D. John Sauer, a lawyer for Trump, countered that events three years ago were insufficient to meet the standard for gagging Trump now. He argued that it would be an impermissible “heckler’s veto” to bar Trump from speaking freely amid an election on the rationale that his remarks “might someday inspire some random third party” to make threats.
There are few legal guideposts directly on point to the issues raised by the Trump gag order fight. Past Supreme Court cases that have addressed gag orders have focused on lawyers or reporters, rather than defendants. And they have generally centered on keeping juries from being tainted by information about trials rather than on preventing threats and harassment that could jeopardize the integrity of the criminal justice process.
Complicating matters further, Trump has blurred the lines between his criminal cases and his presidential campaign, using court appearances to deliver political talking points and employing public remarks to assail his prosecutions.
The appellate judges appeared to be seeking a way to balance protecting the integrity of the election interference case and the people involved in it while preserving Trump’s rights to respond in public to denunciations by his political adversaries or critics, some of whom are likely to be witnesses against him in the case — such as former Vice President Mike Pence.
Underscoring the legal difficulties, the arguments ran far longer than the time they had been allotted. The plan had been that each side would get 20 minutes, but the panel kept grilling Sauer for nearly four times that. Its questioning of Cecil Vandevender, a lawyer working for Smith, went on for nearly an hour.
Prosecutors in the case have argued that courts have wide discretion to limit the statements made by any criminal defendant, even one running for president. They say that the gag order in particular was needed because of Trump’s “near daily” attacks against Smith, Chutkan and potential witnesses in the case, including Pence, former Attorney General William Barr and Gen. Mark Milley, the former chair of the Joint Chiefs of Staff.
Among other things, the judges pressed Vandevender about whether there was a distinction between threats and harassment of prosecutors, versus threats to witnesses or jurors. In particular, they questioned whether inflammatory comments about prosecutors, which the gag order bars, crossed the First Amendment line.
Vandevender argued that if Trump actually thinks individual prosecutors are politically biased, he should make a motion in court raising those concerns. But multiple judges questioned whether that part of the order went too far, including raising doubt about whether Smith would be dissuaded from continuing to pursue the case by verbal attacks.
It is not clear how quickly the three-judge panel of the appeals court will decide on whether to rescind the gag order or keep it in place as the case moves toward its trial date. One or the other side could also appeal the eventual decision to the Supreme Court.
If the order is upheld and goes back into effect, Chutkan may confront an even tougher issue: how to enforce the decree if Trump violates it. A violation of a gag order is treated as a matter of contempt of court, which could result in a reprimand, a fine or imprisonment. But how that would play out is complicated.
There are two types of contempt: civil, which is typically used to coerce future compliance with an order like making a recalcitrant witness testify; and criminal, which is focused on punishing past defiance of an order. Typically — though not always — judges have treated violations of gag orders as the latter type.
In federal court, judges cannot unilaterally impose a fine or order someone imprisoned for criminal contempt. Rather, such an accusation is treated as a new offense that requires the appointment of a prosecutor and another trial — including a right to a decision by a jury.
The battle over the federal gag order comes as a state appeals court in New York is considering the merits of two related gag orders imposed on Trump by Justice Arthur Engoron, who is overseeing his civil fraud trial in Manhattan.
Those orders — which are also currently paused — would bar Trump or any of his lawyers from targeting Engoron’s law clerk. The clerk has suffered repeated attacks by the former president and his allies, who have accused her of being a Democratic partisan.
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