Appeals court weighs narrowing Trump gag order in election subversion case
A federal appeals court appeared inclined at a hearing on Monday to keep some form of a gag order against Donald Trump preventing him from assailing potential trial witnesses and others in the criminal case related to his efforts to overturn the results of the 2020 election.
The court expressed concern, however, that the order was too broad and left open the possibility of restricting its scope – including allowing the former US president to criticize the prosecutors in the office of the special counsel Jack Smith who brought the charges.
The trial judge Tanya Chutkan, who is overseeing the case in federal district court in Washington, entered the order in October that prohibited Trump from making inflammatory statements and social media posts attacking prosecutors, potential witnesses and court staff in the case.
It allowed Trump only to criticize the case in general terms – such as broadly attacking Joe Biden, the Biden administration or the justice department as bringing politically motivated charges against him – and to criticize the judge herself.
Trump appealed to the US court of appeals for the DC circuit, arguing the order unconstitutionally infringed on his first amendment rights and protected core political speech as he campaigns to be re-elected to the presidency next year. The order was paused while he appealed.
On Monday, at the hearing, which lasted more than two hours, the three-judge panel repeatedly suggested they found untenable Trump’s position that there could be no “prophylactic” provision to ensure Trump was restricted from prejudicing the case until after it had already taken place.
Trump’s lawyer John Sauer argued that prosecutors had not met their evidentiary obligations – that Trump’s statements directly led to threats to witnesses, for instance – to get a gag order. The legal standard, Sauer said, should be proof of an “imminent threat”.
But the panel interjected that there was a clear pattern with Trump stretching back to the post-2020 election period that when he named and assailed individuals, they invariably received death threats or other harassment from his supporters.
The pattern has included the trial judge Chutkan, who received a death threat the very next day after Trump’s indictment when he posted “If you go after me, I’m coming after you” on his Truth Social platform, even if Trump had not directly directed his ire at her.
“Why does the district court have to wait and see, and wait for the threats to come, rather than taking reasonable action in advance?” the circuit judge Brad Garcia pressed Sauer.
The Trump lawyer responded that posts from three years ago did not meet the standard required for a gag order, as he argued the supreme court has held that a “heckler’s veto” – gagging a defendant merely because of fears about how a third party might act – was not permissible rationale.
What has complicated Trump’s case is the scant legal precedent to guide the courts in how to balance the constitutional needs of the criminal justice process and Trump’s right to political speech, even as he uses his 2024 campaign to shield himself from legal exposure.
The circuit judges on multiple occasions wrestled with the question of when Trump might be engaged in political speech to defend himself during the campaign, and when he might be engaged in political speech “aimed at derailing or corrupting the criminal justice process”.
Still, the panel was also unconvinced that Trump should not be able to complain about the special counsel’s office, and sharply questioned the government’s lawyer Cecil Vandevender why Trump’s attacks against prosecutors would cause prejudice to the case.
If Trump made an actual threat, the circuit judge Patricia Millett said, that would be a crime and a violation of Trump’s pre-trial conditions of release. But she suggested the special counsel surely had thick enough skin to withstand jibes from the former president.
The panel appeared to conclude in general that some of the language in the gag order, such as Trump being prevented from making statements that “targeted” prosecutors, or the lack of distinctions between threats to prosecutors and threats to witnesses, needed to be refined.
Millett questioned the government’s position that Trump calling a potential trial witness a “slimy liar” was not permissible, but calling the same witness an “untruth speaker” would be. Vandevender struggled to articulate a line of demarcation.
It was unclear how soon the panel would issue a ruling, and whether they would make adjustments to the gag order or rescind it. The three-judge panel were all Democratic appointees: Garcia was appointed by Biden, while Millett and Cornelia Pillard were appointed by Barack Obama.
Regardless of the outcome, either Trump or the government could appeal to the supreme court. But even if the order is ultimately upheld and returned to Chutkan, also an Obama appointee, she faces the tricky task of what to do with potential future violations.
A gag order violation is typically treated as criminal contempt of court, which requires punishment for defying the order. Chutkan could not rule on a sanction herself, however: it would require prosecutors to take it up as a new charge and seek a separate trial.