By Eric Tucker, Alanna Durkin Richer and Lindsay Whitehurst | Associated Press
WASHINGTON — A lawyer for Donald Trump urged a federal appeals court Monday to revoke a gag order against the former president in a landmark criminal case, while a prosecutor argued that curbs are necessary to prevent intimidation and threats against participants in the case that charges Trump with scheming to overturn the 2020 election.
Appeals court judges asked skeptical and at times aggressive questions of attorneys on both sides while weighing whether to put back in place an order from a trial judge that barred Trump from inflammatory comments against prosecutors, potential witnesses and court staff.
The judges raised a litany of hypothetical scenarios that could arise in the months ahead as they considered how to fashion a balance between an order that protects Trump’s First Amendment rights and the need to protect “the criminal trial process and its integrity and its truth finding function.”
“There’s a balance that has to be undertaken here, and it’s a very difficult balance in this context,” Judge Patricia Millett told Cecil VanDevender, a lawyer with special counsel Jack Smith’s office. “But we have to use a careful scalpel here and not step into really sort of skewing the political arena, don’t we?”
VanDevender replied that he agreed but said he believes that the gag order does strike the appropriate balance.
The court did not immediately rule, but the outcome of Monday’s arguments will set parameters on what Trump, as both a criminal defendant and the leading candidate for the 2024 Republican presidential nomination, can and cannot say as the trial date nears. The stakes are high given the volume and intensity of Trump’s public comments about the case and the massive public platform he holds. In a sign of its import, special counsel Smith himself attended the proceedings, sitting in the front row of the courtroom.
During arguments that spanned nearly two-and-a-half hours, the judges expressed clear sympathy for the idea that Trump’s rhetoric could inspire threats of violence.
Judge Brad Garcia pressed Trump lawyer John Sauer to explain why the court shouldn’t take preventive steps.
“This is predictably going to intensify as well as the threats, so why isn’t the district court justified in taking a more proactive measure and not waiting for more and more threats to occur and stepping in to protect the integrity of the trial?” he asked.
But the judges also wondered aloud where to strike a balance. Millett, an appointee of former President Barack Obama, at one point expressed incredulity at the idea that Trump would not be able to respond to criticism about the case from rival candidates if he ever decided to participate in a presidential debate.
“You’re telling me he can’t say public record prosecutors paid by the taxpayers. … It’s all a political vendetta. They all are doing the bidding of Joe Biden?’” she asked. “He can’t stand on the stage and say that?”
The gag order is one of multiple contentious issues being argued ahead of the landmark March 2024 trial. Defense lawyers are also trying to get the case dismissed by arguing that Trump, as a former president, is immune from prosecution and protected by the First Amendment from being charged. The outcome of Monday’s arguments won’t affect those constitutional claims.
The order has had a whirlwind trajectory through the courts since U.S. District Judge Tanya Chutkan imposed it last month in response to a request from prosecutors, who cited among other comments Trump’s repeated disparagement of Smith as “deranged.”
The judge lifted it days after entering it, giving Trump’s lawyers time to prove why his words should not be restricted. But after Trump took advantage of that pause by posting on social media comments that prosecutors said were meant to sway his former chief of staff against giving unfavorable testimony, Chutkan put it back in place.
The U.S. Court of Appeals for the District of Columbia Circuit later lifted it as it considered Trump’s appeal.
Trump attorney Sauer called the order unconstitutional and overly vague.
“The order is unprecedented and it sets a terrible precedent for future restrictions on core political speech,” Sauer said. He described it as a “heckler’s veto,” unfairly relying on the theory that Trump’s speech might someday inspire other people to harass or intimidate his targets.
“They can’t draw a causal line from any social media post to threat or harassment when we have wall to wall media coverage of this case,” Sauer told the court.
The judges hearing the case include Cornelia Pillard and Millett, both appointees of President Obama, and Garcia, who joined the bench earlier this year after being nominated by President Biden. Obama and Biden are Democrats.
Should the judges rule against Trump, he’ll have the option of asking the entire court to take up the matter. His lawyers have also signaled that they would ask the Supreme Court to get involved.
The four-count indictment against Trump in Washington is one of four criminal cases he faces as he seeks to reclaim the White House in 2024.
He’s been charged in Florida, also by Smith’s team, with illegally hoarding dozens of classified documents at his Mar-a-Lago estate in Palm Beach, Florida. He’s also been charged in state court in New York in connection with hush money payments to porn actor Stormy Daniels, who alleged an extramarital affair with him, and in Georgia with working to subvert the 2020 presidential election in that state. He has denied doing anything wrong.