A federal appeals court on Monday appeared poised to uphold but limit a gag order on former President Donald Trump in his D.C. election interference case.
The three-judge D.C. Circuit Court of Appeals panel questioned Trump’s lawyers and special counsel Jack Smith’s team on the scope of the gag order imposed by Judge Tanya Chutkan, raising concerns about how it restricts the presidential candidate from pushing back on public criticism, according to Politico.
Trump attorney John Sauer argued that the gag order is “unconstitutional” and set a "terrible precedent" for "restrictions against core political speech."
The judges pressed Sauer on prosecutors’ argument that Trump’s attacks have led to officials being “threatened and harassed.”
"That's all based on evidence that's three years old,” Sauer argued, adding that Trump had commented on the D.C. case “incessantly” and that there was of anyone involved being threatened.
“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?” Judge Bradley Garcia, a Biden appointee, asked the lawyer.
Judge Patricia Millet, an Obama appointee, questioned whether the First Amendment would protect Trump’s right to call witnesses and tell them to be loyal. Sauer said that could be a violation of his bail restrictions and likely would not violate his constitutional rights.
The judge then asked whether it would be the same if Trump posted the message on social media or at a campaign rally.
“If he’s communicating with the American electorate?” Sauer replied. “I’d have to know more about the context.”
Pressed on whether there was any need for Trump to take concerns over threats into account, Sauer said Trump should be entitled “absolute freedom” to speak his mind.
Though the judges also pressed the special counsel’s team on the broad restrictions in the gag order, legal experts panned Trump’s attorney’s performance.
“Trump's lawyer sounded like an anarchist First Amendment freak. Like First Amendment over anything,” former acting Solicitor General Neal Katyal told MSNBC’s Lawrence O’Donnell. "That is not the law. It can't be the law, for the reason that Judge Millett pointed out, which is, 'Look, we need to have fair trials.' You can't just have a criminal defendant going in and threatening witnesses, threatening the prosecution, threatening the judges and say 'free speech, free speech.' That's insane.”
Katyal said courts have to balance a defendant’s “free speech rights” but “it’s not the only issue.”
“This case, Lawrence, is about a criminal defendant who has a history of threatening other people, including when in trials, and that's what the judge last week in Colorado found, it's a person who talks and double talks so that it's threats that — if you just read the internal threat, it just doesn't seem like a threat,” he said. “You have to read it in context. And Trump always has some sort of explanation, the way a mob boss does of how it's not actually a threat.”
Former federal prosecutor Andrew Weissmann, who served on special counsel Bob Mueller’s team, said that it makes sense for Trump’s lawyer to “essentially stonewall” if “you think you are going to lose.”
“Look, it's a given that every defendant, when they are released, they are told ‘do not commit a crime.’ That includes: ‘Do not threaten a witness.’ That's not a gag order. That's just — you can't commit a criminal act while on bail,” he told MSNBC.
Former Republican National Committee Chairman Michael Steele mocked Trump’s lawyer’s argument and expressed disbelief at the way “we’re setting a whole new standard” for Trump.
“We’re contorting ourselves in ways that we ordinarily wouldn’t have,” he said. “I mean, when did we have this conversation? When did we have to do this? Even when… others were prosecuting high-profile mobsters, you didn’t have to deal with this level of crap. And I hate to put it in that context, but that’s how a lot of us Americans are looking at this and saying, “What are we doing here? The guy needs to shut his mouth up! He needs to obey what the judge tells them to do and do it!”
“Put him in jail if he keeps running his mouth.” Former RNC Chair Michael Steele is fed-up with Trump and his challenges to the court’s gag order. (Video: MSNBC) pic.twitter.com/PXAYbTHNzh
— Mike Sington (@MikeSington) November 21, 2023
Former Trump White House lawyer Ty Cobb on Monday reiterated his prediction that Trump would eventually be jailed for violating the gag order.
“I don’t think his first or second violation of the gag order will find him sent to jail,” he told CNN. “But I think ultimately, you know, his narcissism will get the best of him, and he will violate it until he finds out what the limits of Judge Chutkan’s patience are.”
