The Trump team is seeking to overturn a gag order in the federal case in Washington D.C., where the former President is confronting criminal charges linked to his efforts to overturn the 2020 election. In a federal appeals court, a trio of judges considered arguments from Trump’s legal representatives, who asserted reasons why the gag order should be removed. In a surprising stance, Trump’s lawyers argued that the ex-President should be free to influence witnesses.
Lawyers Argue for Right to Free Speech
Numerous accounts suggest that the judges in the federal appeals court were not entirely persuaded by the arguments presented by Trump’s legal team in their attempt to reverse the gag order. Trump’s attorneys contend that the order infringes upon free speech. At the same time, Special Counsel Jack Smith expressed concerns that the former President’s rhetoric could threaten the trial’s integrity.
Order Is Not Currently in Effect
The presently inactive order would prohibit Trump from making public comments regarding individual prosecutors, potential witnesses or court personnel. Trump has petitioned the appeals court to either overturn or temporarily suspend the gag order. Judge Chutkan, in her initial ruling, permitted Trump to “criticize the Justice Department, President Biden and herself.”
Muzzling President Trump
In their filing to the court, Trump’s attorneys reportedly stated that the gag order was “muzzling President Trump’s core political speech during a historic Presidential campaign” and that his comments were “viewpoint-based,” arguing that Trump’s remarks had not been threatening.
A Filter for Core Political Speech
D. John Sauer, Trump’s lawyer, argued to the appeals court judges that the gag order is “a filter for core political speech.” Sauer added the order would have a “near complete overlap between the issues in the political campaign and the issues in the case.”
Do Not Cooperate
The judges and Sauer had a lengthy back and forth reported by Business Insider when trying to establish what would be perceived as acceptable comments. One Judge asked, “So is it your position that if he communicates through a social media post: ‘Hey, Witness X, I know the prosecutor is bothering you, trying to get you to say bad things about me — be a patriot, don’t act treasonously, don’t cooperate’—.”
Pressuring the Witness Would Be OK
Business Insider reported that “Sauer interrupted the judge, saying it would ‘depend on the context’ if it would be OK for Trump to pressure a witness in a public setting, and declined to answer the question directly.”
If It Was a Fair Response
The article by Business Insider went on to describe the exchange between the Judge and Sauer: “After several minutes of back-and-forth with the judge — What if it was a “fair response” to something Witness X said? What if it was in the “political arena”? What if it was about former Vice President Mike Pence, who until recently challenged Trump for the 2024 Republican presidential nomination? — Sauer finally conceded that there were possible circumstances where Trump would be violating the order.”
An “Absolute Abomination”
In October, when the gag order was initially enforced, Trump’s campaign spokesperson stated the decision was an “absolute abomination and another partisan knife stuck in the heart of our Democracy by Crooked Joe Biden.”
Protecting the Criminal Trial Process
Judge Patricia Millett, one of the three judges deciding on the appeal, said to Sauer, “You make very important points about political speech, but the Supreme Court says there should be a balancing test with protecting the criminal trial process.”
Inspiring Violence From Supporters
The special counsel had additionally requested Judge Chutkan to impose broader limitations on Trump’s speech, asserting that his remarks posed a threat to the proper functioning of the judicial process and could potentially incite violence from his supporters. Special counsel Jack Smith had been a frequent target of Trump’s social media posts.
Corrupting the Criminal Justice Process
In the appeal hearing, Millett asked if Trump’s comments about Jack Smith were part of his political campaign or if it was “political speech aimed at derailing or corrupting the criminal justice process.” Trump had previously called Jack Smith “deranged.” The Judge also pointed to the reports that Trump had called Mark Meadows a coward.
Skewing the Political Arena
Millett stated that to make their decision, “We’ve got to use a careful scalpel here and not step into really skewing the political arena.”
A Significant and Immediate Risk
On the prosecutor’s side, Cecil VanDevender said that Trump’s comments posed “a significant and immediate risk” to a fair trial.
A Pattern Between Comments and Threats
“There is a pattern. There is a dynamic that is very clear,” VanDevender told the Judge, stating comments previously made by Trump had resulted in threats made by the public.
Social Media Used to Target Adversaries
VanDevender highlighted the importance of the gag order in dealing with the threats, arguing that Trump had a “well-established practice of using his public platform to target his adversaries” that “poses a significant and immediate risk to the fairness and integrity of these proceedings.”
A Chilling Effect on Proceedings
“It creates a world in which public servants will have to decide, ‘Do I want to handle this kind of case … or in doing so will I be threatened, my family be threatened?’ There’s a chilling effect and a pall cast on the whole proceedings,” he added. “How likely are you to quit if your family received a death threat?”
Trump Already Intimidating Potential Witnesses
Business Insider reported that the Judge had previously found that Trump “would have violated her order through a Truth Social post calling former chief-of-staff Mark Meadows a weakling and a coward.”
No Indication When Ruling Will Be Made
The judges did not specify a timeline for their decision on the Washington D.C. gag order. While Trump’s legal team succeeded in temporarily halting a gag order in the New York trial, it’s crucial to note that the decision to pause the New York gag order was based on the absence of a jury and the civil nature of the case. As a criminal proceeding, the Washington D.C. case would not follow the same rationale.