Appeals court, after hearing arguments, will mull limited gag order in Trump's federal election interference case

WASHINGTON — A Washington, D.C., appeals court pressed prosecutors with the special counsel's office and attorneys for Donald Trump over the viability of a limited gag order in Trump's federal election interference case at a hearing Monday.

The limited gag order, issued by U.S. District Judge Tanya Chutkan but currently paused on appeal, prohibits Trump from making or reposting statements "publicly targeting" special counsel Jack Smith and his staff, as well as targeting the judge's staff and the staff of other D.C. district court personnel.

The judges did not immediately issue a decision on whether the limited gag order should be reinstated.

Trump in August pleaded not guilty to charges of undertaking a "criminal scheme" to overturn the results of the 2020 election by enlisting a slate of so-called "fake electors," using the Justice Department to conduct "sham election crime investigations," trying to enlist the vice president to "alter the election results," and promoting false claims of a stolen election as the Jan. 6 riot raged -- all in an effort to subvert democracy and remain in power.

The former president has denied all wrongdoing and denounced the charges as "a persecution of a political opponent."

Chutkan issued the limited gag order last month after Trump made comments and online posts that included calling Smith "deranged" and a "thug."

At Monday's hearing, Trump attorney John Sauer described the limited gag order against Trump as "unprecedented" and one that set "a terrible precedent for future restrictions on core political speech."

"It's not the role of the government to dictate what is -- what topics are appropriate or unnecessary to discuss in the context of a political campaign," Sauer said. "The gag order does both of those things."

The panel of judges asked Sauer if his position would be different if the gag order was implemented against Trump a year ago -- seeking clarity on whether the proximity to the 2024 presidential election would impact their stance on the gag order's constitutionality.

Sauer said he would still consider the gag order unconstitutional and that what Trump is engaging in with his criticisms of Smith and the case qualifies as protected political speech.

A judge then asked whether the defense's position is that Trump is "above the law," to which Sauer replied they haven't argued that.

The judge then pressed Sauer on whether he believes courts, at any point, can claim a sufficient interest in protecting the integrity of a trial that they could implement such a gag order -- and presented him with several instances of Supreme Court precedent.

Sauer, however, agued that the present conditions represent a wholly unique situation.

Sauer also argued that for a gag order to be put in place, a threat has to be "imminent" and not merely speculative -- which Judge Bradley Garcia indicated ran afoul of precedent.

Special counsel appellate attorney Cecil VanDevender argued that restrictions on making direct attacks against Smith were supported by Supreme Court precedent -- but judges challenged him to explain why that didn't violate Trump's First Amendment rights, raising a hypothetical scenario in which Trump is on a debate stage where his opponents can raise all manner of specific issues regarding the prosecutions he is facing, and asking whether he should be barred from responding to them.

The judge asked VanDevender whether Trump would have to speak "Ms. Manners" while everyone on the stage is targeting him.

VanDevender said the existing order would permit Trump to say the prosecution was politically motivated and call the Justice Department corrupt, but that Trump should be barred from even mentioning the names of prosecutors in the case -- a position that resulted in aggressive pushback from judges as they presented him with several hypothetical scenarios that could test the gag order.

One judge asked if Trump could respond to a Bill Barr appearance on 60 Minutes attacking him over Jan. 6, by saying everything Barr said was false.

VanDevender suggested Trump could say it was false, but couldn't engage in other "inflammatory language" or attack Barr's credibility directly in a way that would influence the jury pool.

Another judge asked it calling someone a "slimy liar" inflammatory.

"I think it's inflammatory," VanDevender answered -- adding that while Trump could say he "disagreed" with a witness' testimony related to Jan. 6, he could not say that they "lied."

"We certainly want to make sure that the criminal trial process and its integrity and truth-finding function are protected," a judge said of the process by which the panel will makes its decision.

Comments on this article