A three-judge appeals court panel expressed skepticism of former President Trump’s attempt to throw out the gag order in his federal 2020 election subversion case, but the judges Monday did seem open to narrowing the order’s scope.
Trump’s legal team contends the gag order, which bars Trump from targeting key figures in his case — witnesses, special counsel Jack Smith and court staff — chills protected political speech in violation of Trump’s First Amendment rights.
But that argument almost immediately received pushback from the panel of three judges, all appointed by Democratic presidents, who rigorously questioned whether the real-world threats that often follow Trump’s attacks should be preempted and the extent to which the former president’s 2024 campaign informs his counsel’s legal arguments.
“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 system,” said Judge Patricia Millett, an Obama appointee.
U.S. District Judge Tanya Chutkan imposed the gag order last month upon prosecutors’ request, who cited Trump’s social media posts and other comments attacking individuals involved in the case since Trump was indicted on four felony charges in August. Trump pleaded not guilty.
The gag order is on hold until the appeals panel issues its ruling. If Trump loses, his lawyers have vowed to take the issue to the Supreme Court.
Millett was especially vocal during Monday’s argument, repeatedly pressing Trump attorney John Sauer with hypotheticals and appearing visibly frustrated at times. Millett questioned what speech would be banned under Trump’s proposed standard that wouldn’t already be criminal in itself.
“The gag order in this case installs a single federal district judge as a filter for core political speech, leading presidential candidates and virtually every American voter in the United States at the very height of a presidential campaign,” said Sauer, a former Missouri solicitor general.
Sauer contended that prosecutors had not shown sufficient evidence to impose the gag order, noting that many of the threats the government references in its request occurred in 2020.
“Counsel, I think the concern is that it seems, at times, your position would be that the district court’s hands are tied until we actually know there has already been harm to the integrity of the trial,” said Judge Brad Garcia, an appointee of President Biden, to whom Trump lost in 2020.
Sauer was accompanied in the courtroom by multiple other attorneys who have been representing Trump in the case, including John Lauro, Todd Blanche, Emil Bove and Gregory Singer. Trump himself did not attend.
Smith was in attendance for Monday’s argument, sitting in the first row behind the prosecution table. Molly Gaston and Thomas Windom, two senior prosecutors on the case, sat in the row behind Smith.
The prosecution — represented by Cecil VanDevender, an assistant special counsel — argued that Trump’s “well-established practice” of using his political platform to target adversaries poses a “significant and immediate risk to the fairness and integrity” of the case.
He said some 16 people connected to Trump’s various legal cases have received threats after the former president pointed his rage in their direction, including the Democratic district attorneys who brought the New York and Georgia criminal cases against Trump and the New York judge presiding over the former president’s ongoing civil fraud trial.
Trump’s online attacks have often resulted in real-world threats by his supporters against the former president’s purported foes. Millett noted that Trump has millions of social media followers, and that those named on his accounts are often “threatened and harassed.”
“The notion that there was some dynamic that existed in 2020 that has since abated or gone stale I think is wrong,” VanDevender said.
The panel on Monday, however, appeared not fully convinced by the government’s broad interpretation of the gag order, suggesting that its position “doesn’t seem to give much balance at all” to the protections afforded to political speech under the First Amendment.
“The notion that high-profile public figures or governmental officials — who have taken on enormous responsibility, like prosecutors — can’t stand up to some inflammatory language seems to me to contradict Supreme Court precedent, and it seems to me sort of a very troubling lack of balance on the free speech side on the part of prosecution in this case,” Millett said.
Judge Cornelia Pillard raised concern at one point about the gag order’s language, which restricts comments that “target” certain individuals. Trump’s attorneys are arguing it is unconstitutionally vague.
“I think you’re right that that targeting does raise a little bit of unclarity,” said Pillard, an Obama appointee.
The fine line prosecutors are asking the Appeals Court to draw was underlined during an exchange in which Millett questioned language that would or wouldn’t be allowed under the government’s ideal interpretation of the gag order.
VanDevender repeatedly argued that attacks undermining any potential witness’s credibility would be unacceptable speech under their interpretation of the order.
“Can he say they’re an untruth speaker?” Millett asked.
“Yes,” VanDevender replied.
Blanche, one of Trump’s attorneys, cracked up at that exchange, later placing his hand over his face and shaking his head side to side.
“But he can’t say they’re a liar,” Millet added.