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WASHINGTON – Judges on a federal appeals court grilled prosecutors and lawyers for Donald Trump over a gag order in his trial on charges the former president conspired to overturn the 2020 election, wrangling over the difficulty of regulating political speech during a presidential campaign.
U.S. District Judge Tanya Chutkan ordered Trump on Oct. 16 not to comment about court staff, prosecutors or potential witnesses.
Trump appealed, arguing the order violated the First Amendment because it would muzzle him while running for president in 2024. But Justice Department special counsel Jack Smith’s team insisted the order is necessary to curb the potential for threats, harassment and intimidation of prosecutors and witnesses in the case.
The three-judge panel of the D.C. Circuit Court of Appeals pointedly questioned Trump’s demand for unrestricted speech so long as he doesn’t violate criminal laws against threats. Trump lawyer John Sauer said the only restrictions should be on imminent threats of harassment or intimidation.
But the judges also raised concerns about making the restrictions too strong because the trial, scheduled to begin March 4, will take place in the heat of the primary season. At one point, a government lawyer said Trump could call a potential witness “untruthful” but not a “liar” because that would impugn their credibility before the trial.
“It’s a very difficult balance in this context,” said Judge Patricia Ann Millett, who heard the case with Judges Cornelia Pillard and Bradley Garcia. “We’ve got to use a careful scalpel here and not step into really sort of skewing the political arena, don’t we?”
The panel has lifted Chutkan's restrictions while the case is argued. Millett and Pillard were appointed by Barack Obama and Garcia by Joe Biden.
The case involves one of two gag orders Trump is appealing, including one in his New York civil fraud trial. Both gag orders were lifted while the cases are argued. The federal case is significant because it could be Trump's first criminal trial out of four pending against him.
What does Chutkan's gag order do?
Trump faces four charges in the federal case: conspiracy to defraud the United States; two conspiracy counts for corruptly obstructing the certification of the election on Jan. 6, 2021; and conspiracy to violate people's right to have their votes counted. Trump has pleaded not guilty.
Prosecutors argued that while Trump isn't charged with inciting the Jan. 6 insurrection, the indictment "squarely alleges he is responsible" for the events of that day, when "lives were lost; blood was shed; portions of the Capitol building were badly damaged" and the lives of lawmakers and staffers were endangered.
The special counsel's office asked for the gag order by arguing that Trump posted a public threat on social media three days after his indictment: “IF YOU GO AFTER ME, I’M COMING AFTER YOU!”
Smith's prosecutors said Trump had disparaged them as "deranged," "thugs" and "lunatics" and called the presiding judge a "fraud" and a "hack." And Trump has targeted potential witnesses, they said, including former Vice President Mike Pence as "delusional" and "not a very good person" and had said the former chairman of the Joint Chiefs of Staff had done something “so egregious that, in times gone by, the punishment would have been DEATH!”
Chutkan ordered Trump not to comment on the court staff, prosecutors or potential witnesses. She said he could continue to criticize the Justice Department and political rivals such as Pence, a former rival for the GOP nomination.
But Trump wants to comment to 100 million followers on social media about the judge, prosecutors and potential witnesses for what he calls a political prosecution.
Chutkan had suspended her gag order for Trump's anticipated appeal. But she reinstated it − before it was lifted on appeal − when Trump posted on social media about his former White House chief of staff, Mark Meadows, a potential witness against him.
Trump contends gag order creates a 'heckler's veto' against his presidential campaign
Trump's campaign issued a statement Friday arguing the gag order allowed an unelected judge to censor a leading candidate for president weeks before the Iowa caucuses.
"No court has ever upheld a gag order on core political speech at the height of a campaign," the statement said. "The unconstitutional Gag Order in the DC case should be speedily reversed."
Trump's lawyers said the gag order prevented the GOP front-runner's political speech based on his viewpoint, which they argued was unconstitutional and amounted to a "heckler's veto" against criticism of public figures and matters of enormous public interest.
"The First Amendment forbids this heckler’s veto, and even if it were legally viable − which it is not − no convincing evidence supports it," Trump lawyer John Sauer wrote in a filing.
Sauer added that a single judge shouldn't stand between Trump and his national audience.
"The district court had no business inserting itself into the Presidential election, just weeks before the Iowa caucuses," Sauer wrote. "The First Amendment does not permit the district court to micromanage President Trump’s core political speech, nor to dictate what speech is sufficiently 'general and what speech is too 'targeted' for the court’s liking."
'No evidence at all of threats and harassment': Trump lawyer
Sauer argued most of the evidence of Trump loyalists making threats based on his social media posts or speeches dated to 2020 and 2021.
“There is no evidence at all of threats and harassment in this case,” Sauer said.
The appeals judges questioned what it would take to restrict Trump’s speech. Garcia asked whether the trial judge’s hands were tied until there was proof of witness intimidation.
“The atmosphere was very tense,” Garcia said of the politics of 2020. “As trial approaches, the atmosphere is going to be increasingly tense. 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?”
Sauder said the standard to restrict Trump’s speech should be solid evidence that “demonstrated an imminently impending threat,” rather than mere speculation of how his loyalists might respond. Sauer said Trump has been posting on social media nonstop about the case since he was indicted and prosecutors haven’t traced any threats to the posts.
“The evidence we have now completely counteracts that inference because it is undisputed that President Trump has been posting about this case almost incessantly since the day it was filed and they haven’t come forward with a single threat that’s even arguably inspired by any evidence in his social media posts,” Sauer said.
Court must balance free speech against fair trial: judge
Millett asked Sauer for an example of language that would violate the court order without being a threat or harassment that could be prosecuted as a crime.
“Can you give me an example of some speech that is covered by your test that isn’t already covered by the criminal law?” Millett asked.
Sauer said he couldn’t think of an example immediately.
“I cannot think of a hypothetical that would not be a violation of the law,” Sauer said.
But Millett said the judges would have to balance Trump’s First Amendment right to free speech against the constitutional responsibility to maintain the integrity of the trial.
“Labeling it core political speech begs 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,” Millett said. “We have to balance.”
Prosecutors urge appeals court to uphold gag order to prevent a 'smear campaign'
Prosecutors urged the appeals court to uphold the gag order, to prevent threats and intimidation of court officials and potential witnesses.
"In the defendant’s view, the likelihood that harassment, threats, and intimidation would foreseeably result from his targeting was 'totally irrelevant,'" prosecutors wrote. "But, like every other criminal defendant, he does not have 'carte blanche to vilify and implicitly encourage violence against public servants' and he may not 'launch a pretrial smear campaign against participating government staff, their families, and foreseeable witnesses,'" prosecutors added, quoting Chutkan.
Government lawyer seeks to prevent Trump from trying case in media
Cecil VanDevender, who argued for the prosecutors, said there had never been a case where such a prominent defendant incessantly posted messages to a national audience vilifying prosecutors and the judge, and calling potential witnesses liars and cowards.
“That alone would be sufficient for the District Court to act,” VanDevender said. “They are absolutely going to be chilled,” he said of witnesses.
But judges sounded skeptical that potential witnesses such as Milley or former Vice President Mike Pence or former Attorney General Bill Barr would be intimidated by Trump’s social media posts.
If Barr or Milley gave interviews critical of Trump, judges asked how Trump could be prevented from responding and questioning their credibility.
“I have to say they make a good point,” Millett said of Trump's lawyers.
VanDevender argued the term liar shouldn’t be allowed because it could hurt their credibility with the jury. “That’s trying the case in the media,” he said.
He suggested "untrue" or "untruthful" could be more appropriate. “What he said was untrue and here’s why,” VanDevender suggested as appropriate language.
This article originally appeared on USA TODAY: Appeals court weighs free speech, fair trial in Donald Trump gag order