- Trump’s legal team has opposed his gag order in his upcoming election interference trial.
- Prosecutors accuse Trump of intimidating potential witnesses during his upcoming trial.
- His lawyer said it depended on “context.”
A three-judge panel on Monday appeared highly skeptical of the arguments of Donald Trump’s legal team seeking to lift the silence order that prohibits him from attacking potential witnesses in his election interference criminal case.
D. John Sauer, Trump’s lawyer, offered a very expansive look at the former president’s First Amendment rights during a hearing before the U.S. Court of Appeals for the D.C. Circuit.
Depending on the “context,” Sauer argued, Trump could put pressure on potential witnesses not to cooperate with prosecutors.
Judge Patricia Millet, an Obama appointee to the panel, repeatedly pressed Sauer to clarify whether Trump could ever be barred from speaking. She seemed annoyed when he avoided articulating such standards.
“So do you think that if he posts a message on social media: ‘Hey, witness ask Sauer.
Sauer interrupted the judge, saying it “depends on the context” whether Trump would be able to pressure a witness in a public place, and declined to answer the question directly.
After a few minutes of back and forth with the judge – what if this was an “honest answer” to something Witness X said? What if this were the case in the “political arena”? What if it were former Vice President Mike Pence, who until recently competed with Trump for the Republican Party’s 2024 presidential nomination? — Sauer finally acknowledged that there are possible circumstances in which Trump would violate the order.
“It sounds like the way you described it would be a violation,” Sauer said.
“But with the caveat that certain additional facts would lead to a different conclusion,” Sauer hastened to add, interrupting the judge’s next question.
The appeals court hearing came after U.S. District Judge Tanya Chutkan found that Trump had violated an earlier order of silence setting limits on his speech and social media posts attacking witnesses, lawyers and court staff.
In the context of criminal cases, freedom of speech rights are often restricted to ensure the fairness of the proceedings. Judges regularly restrict parties from speaking about evidence before it is admitted into the court record during a trial. They can also impose supervision measures and send defendants to prison if they believe the defendant violated orders or tampered with witnesses, as a New York judge did in the summer in the criminal case of FTX founder Sam Bankman-Fried.
“There are plenty of cases where a defendant has no right to have his case heard in the media,” Judge Cornelia Pillard told Laura during Monday’s hearing. – That’s what the court is for.
Trump’s lawyers said his right to free speech trumps all else
Prosecutors in the case – one of four ongoing criminal cases against the former president – accused Trump of engaging in a criminal conspiracy to defraud the government and obstruct Congress by trying to block the certification of the 2020 presidential election.
These efforts culminated in his supporters attacking the U.S. Capitol on January 6, 2021, according to Department of Justice Special Counsel Jack Smith.
Trump has dismissed the impeachment – and all other cases against him – as politically motivated. Chutkan’s initial silence order issued on October 17, expressly allowed Trump to criticize prosecutors in this regard and criticize the Justice Department, but not to make statements that would lead to harassment or threats. IN opinion from October 29said Trump would violate her order via Truth Social, which found his former chief of staff Mark Meadows on a list of “weak and cowardly” if he cooperated with prosecutors in the investigation.
Trump’s lawyers have sought to get rid of the gag order altogether, arguing that it violates his First Amendment rights, which they say are especially heightened because he is a leading candidate for the Republican nomination in the 2024 presidential election. Chutkan scheduled a hearing for March.
“What they characterized as ‘threats’ is actually, under Supreme Court jurisprudence, pure political speech,” Sauer said. “It’s rough and full of failures, it hits hard in a lot of ways, but it’s definitely at the core of a political speech.”
Department of Justice Special Counsel Jack Smith.
MANDEL NGAN/AFP via Getty Images
At the same time, as the judges noted, Trump’s media megaphone increases the risk of his statements. His remarks on social media and at rallies reach the ears of millions of supporters, some of whom have made threats against those involved in his affairs.
“The question is whether this is actually political speech or political speech intended to derail or corrupt the criminal justice process,” Millet said. – You can’t just call it that.
Monday’s hearing was overseen by two appointees of former President Barack Obama and one of President Joe Biden.
Millet, one of the panel’s judges, repeatedly expressed frustration with Sauer, who argued that Trump’s First Amendment rights were so broad that he could even comment on individual jurors during a criminal trial. However, Sauer admitted that Trump would not be allowed to tweet their addresses.
While the justices seemed inclined to uphold most of Chutkan’s ruling, they seemed dissatisfied with its scope.
Chutkan barred Trump from making personal attacks on Smith, which irritated some judges given his position as special counsel.
They also disagreed with the argument of Cecil Woods VanDevender, representing the Department of Justice, who stated that Trump cannot discredit former Attorney General Bill Barr, who criticized Trump, but can be a witness in the trial.
“We have to use a careful scalpel and not get involved in distorting the political arena, right?” – said Millet.
The order of silence in the election interference case is separate from the order of silence in another ongoing civil suit against Trump in New York.
In that case, Judge Arthur Engoron placed specific restrictions on Trump’s attacks on his staff. It found that Trump had violated it in early November, although an appeals court temporarily lifted the order on Thursday.
Correction: November 20, 2023 — An earlier version of this story misidentified the lawyer who defended Trump during the hearing. It’s D. John Sauer, not John Lauro.
