“He Will Push the Limits as Far as He Can”: Former Prosecutor Says Trump Judge Has “The Duty To Protect Proceedings” With Gag Orders

Cynthia PaulDec 2, 2023

Minute Read

Former federal prosecutor Barbara McQuade said that Donald Trump’s legal team argues that his First Amendment rights as a presidential candidate outweigh the laws of criminal and civil court.

An “Apples and Oranges” Situation

Editorial credit: Potashev Aleksandr/Shutterstock.

Trying to position their case in the context of the average American life, Trump’s attorneys are referring to this as an “apples and oranges” issue; that is not the case for him, as he is involved in two separate trials, one civil and the other criminal, each with its own set of regulations.

Ensuring a Fair Trial

The Michigan law professor said, “One of those limitations is when you are in the context of a criminal case.” “Because there are other issues at play. And that is the integrity of the case, protecting the jury pool, and ensuring a fair trial. Then, the safety of the witnesses and the participants.”

We Are in a Very Narrow World of a Criminal Case

“It isn’t like we are operating in the world at large. That is the way the lawyers are framing this, talking about this core political speech. Instead, we are in a very narrow world of a criminal case.” She clarified that the judge has “the duty to protect the integrity of the proceedings” in these circumstances.

Just the Rules of Bail in General

The inability to commit new crimes is one of the terms of everyone’s bail when they are released before trial. Last Monday, legal commentator Andrew Weissmann clarified that the issue is with bail regulations generally rather than the gag order.

He Will Push the Limits as Absolutely Far as He Can and Then a Little Bit More

Editorial credit: a katz / Shutterstock.

“I think they should follow the wise old adage that when someone shows you who they are, you should believe them,” McQuade added. “I think it matters. I think Donald Trump has demonstrated that he will push the limits as absolutely far as he can and then a little bit more. So, I think that this was a very powerful filing.”

Terrible Precedent for Restrictions Against Core Political Speech

Editorial credit: lev radin/Shutterstock.

D. John Sauer, a lawyer representing Trump, contended that maintaining the gag order would create a “terrible 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.

Trump’s Comments Leave People ”Threatened and Harassed”

Editorial credit: Russ Vance / Shutterstock.

When questioned by one on the prosecution’s claim that Trump’s remarks against witnesses and officials in public have made individuals feel “threatened and harassed,” Sauer responded, “That’s all based on evidence that’s three years old.” He claimed that Trump has “incessantly” spoken on the matter and that there is no proof that any of the parties involved in the election meddling case have received threats.

Why Does the Court Have to Wait for the Threats to Come?

“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?” inquired Judge Bradley Garcia, the candidate for Joe Biden.

A First Amendment Concern?

Judge Patricia Millet questioned if Trump’s fictitious calling of witnesses and instruction to remain faithful raised any First Amendment issues. In response, Sauer said that while it could be against his bail terms, it probably wouldn’t raise any constitutional problems. The judge went on to question if that dynamic would alter if Trump said something similar at a political rally or on social media.

Is Trump Communicating With the American Electorate?

“If he’s communicating with the American electorate?” Sauer answered. He remarked, “I’d have to know more about the context,” and that posting such a comment on social media would put him “further afield”.

Trump Should Be Entitled to “Absolute Freedom” to Speak His Mind

Editorial credit: Evan El-Amin / Shutterstock.

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

Smith Most Likely Has “Thick Enough Skin” Not to Be Intimidated by Such Posts

The judges didn’t appear to buy that reasoning, but they did have some inquiries for Smith’s office regarding the gag order’s parameters—namely, how it shields Smith and his staff. Following Trump’s “inflammatory posts” against Smith, Smith’s lawyer Cecil VanDevender informed the judges that his office had received “intimidating communication” and “multiple threats.” Smith probably has “thick enough skin” to not be scared by such posts, according to one of the judges.

Judges Concerned for Gag Order’s Protection of Criticism of Potential Witnesses

The shielding of possible 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.

Judges Skeptical Trump’s Posts Would Affect Milley’s Testimony

She pointed out that the day after Milley had criticized Trump in an interview, Trump posted a vicious post-indictment social media message about him. VanDevender stated that Trump’s postings may have an impact on other witnesses who are appearing, in response to the judges’ skepticism about how they might alter Milley’s evidence.

Trump Entitled to Defend Himself, but Only to a Point

Editorial credit: Gino Santa Maria/Shutterstock.

Only to a certain extent, the justices also questioned where the boundary was for Trump’s right to self-defense. VanDevender stated that Trump might claim that a prominent figure who would be testifying against him had made a “untrue” statement, but he could not refer to the individual as a “slimy liar.”

An ‘Untruth Speaker’

“He can say it’s untrue. Can he say that person’s an ‘untruth speaker’?” Millet enquired. “Yes,” the attorney answered.

We Have to Use a Very Careful Scalpel Here

“But he can’t say ‘liar’?” Millet went on. “There’s a balance that has to be undertaken here, and it’s a very difficult balance in this context,” she remarked. She continued, “We have to use a very careful scalpel here.”

No Court Has Ever Upheld a Gag Order on Core Political Speech at the Height of a Campaign

In a statement released on Friday, Trump said that “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.” “At the height of a campaign, no court has ever upheld a gag order on core political speech,” he continued, urging a “speedy reverse” of the decision.

The Gag Order Is Necessary for a Fair Trial

Smith’s office prosecutors have maintained that the order is required for a fair trial and that there was a danger of witness intimidation and harassment as a result of Trump’s social media posts and public remarks regarding potential witnesses and their attorneys.