A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit indicated it may narrow the order prohibiting Trump from attacking individual prosecutors such as special counsel Jack Smith, or from calling potential witnesses against him “liars” in the heat of next year’s campaign. But they noted that Trump was “not above the law,” or free from criminal prohibitions against intimidating or tampering with witnesses, including as conditions of his pretrial release on bail.
“There’s a balance that has to be undertaken here, and it’s a very difficult balance,” said Judge Patricia A. Millett, the senior member of the panel that heard Trump’s fast-tracked appeal. “We’ve got to use a careful scalpel here and not step into really sort of skewing the political arena, don’t we?”
U.S. District Judge Tanya S. Chutkan imposed the order on Oct. 17, barring Trump and all interested parties in the case from making public statements that target the prosecution or defense teams, court staff, potential witnesses or their testimony. She said Trump could still verbally assail President Biden, and claim that his prosecution is politically motivated, as long as he does not attack individual prosecutors. He also could attack the campaign platforms and policies of Republican presidential rivals who were witnesses in the case, a category that included former vice president Mike Pence before he ended his campaign.
Trump’s status as a leading presidential candidate “does not give him carte blanche to vilify and implicitly encourage violence against public servants who are simply doing their job,” nor to subject witnesses to intimidation or harassment, Chutkan said.
The gag order is on hold at least until there is a ruling on the appeal by Millet and Judges Cornelia T.L. Pillard and Bradley Garcia — the former two appointed by President Barack Obama in 2013 and the latter by Biden in May. Their decision could be appealed to the full appeals court, or to the Supreme Court.
A New York state appeals court has similarly temporarily paused a different gag order issued in a civil case against Trump while he appeals. The former president is separately awaiting trial in three other criminal cases: a federal case in Florida, for allegedly mishandling classified documents after his presidential term ended and obstructing government efforts to retrieve the restricted material; a state case in Georgia, for alleged election-obstruction there in 2020; and a state case in New York, for alleged fraud related to a hush money payment during the 2016 election. Trump has denied all wrongdoing.
Over nearly 2½ hours of oral arguments on Monday, far beyond the scheduled time, Millett, Pillard and Garcia struggled over how to juggle opposing constitutional interests in protecting Trump’s “core political speech,” on the one hand, and ensuring the government, defense and public a fair trial.
The judges appeared intent on holding Trump to the same standard of behavior as other defendants, even as they worried that such a standard might be overbroad and unfair in this instance. In trying to apply the few available precedents on the issue — U.S. courts have rarely addressed the question of gag orders — the judges noted that in some ways the entire subject was uncharted given the role that social media plays in modern life.
As Millett succinctly asked: Is it core political speech, or is it “political speech aimed at derailing or corrupting the criminal justice process?”
Assistant special counsel Cecil VanDevender alleged the latter, claiming a “dynamic” or “pattern” by Trump, stretching back years, in which he rhetorically targets his opponents, who then become “subject to harassment, threats and intimidation.” He said the former president is attempting to undermine the judicial system and his prosecution through a gusher of “disparaging and inflammatory attacks” against case participants, including potential witnesses.
The special counsel cited Trump’s public statements that Pence, “ma[d]e up stories about me, which are absolutely false”; that his attorney general, William P. Barr, “didn’t do his job” because he was afraid of being impeached; that in times past his Chairman of the Joint Chiefs of Staff, Army Gen. Mark A. Milley, would have been executed for treason; and that potential testimony from his former chief of staff, Mark Meadows, was a “lie” “mad[e] up” to secure immunity, while “weaklings and cowards” might do.
VanDevender also pointed to the arrest of a Texas woman in August charged with making death threats against Chutkan, one day after Trump posted after his recent indictment in the case, “IF YOU GO AFTER ME, I’M COMING AFTER YOU!”
But judges pressed VanDevender: Didn’t Milley publicly criticize his former boss the day before Trump’s attack, and wasn’t it true that historically the penalty for treason was death? Didn’t Chutkan expect attacks on herself from her order, and couldn’t she be expected to remain impartial despite such attacks? More broadly, aren’t high-level government officials used to the rough-and-tumble of public debate, with “thick-enough skin” not to be intimidated by Trump?
Millett raised another concern. What if Trump’s rival candidates invited a potential trial witness, “Mr. X,” to the campaign stage to attack Trump — wouldn’t Trump then have the ability to respond?
“You can’t call anyone a liar?” Millett asked with a tone of incredulity.
The judges were at least as tough on Trump attorney D. John Sauer, pressing him to concede that his client was not “above the law.” Yes, he acknowledged under bail terms long upheld by the Supreme Court, judges can condition a defendant’s pretrial release on their not communicating with witnesses outside the presence of their lawyers.
And under existing law, the judges said, they can enter “prophylactic” measures to protect case participants. “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?” Garcia asked.
But Sauer claimed Chutkan’s order went further than that and was “categorically unconstitutional,” installing “a single federal judge as a filter” between a presidential candidate and the American voters.
Sauer said the order was a “radical departure” from Supreme Court precedent allowing restrictions on a candidate’s political speech at the height of a campaign only when the speech would pose a clear and present danger or “true threat” of immediate violence. By contrast, Chutkan’s order would apply to statements that pose “a significant and immediate risk” of threats or harassment to case participants. Typically, courts can impose gag orders when there is a “substantial likelihood of material prejudice” from public statements by interested parties.
Pillard asked whether Trump’s defense would accept a gag order that instead of barring statements “targeting” case participants, prohibited “comments about witnesses because of” their expected testimony, floating language for a possible narrowing of Chutkan’s order.
Sauer replied that still got into the tricky question of a court interpreting Trump’s or the speaker’s intentions.
Sauer also challenged the logical and factual basis of the government’s allegations, rejecting the claim that Trump’s statements incite others to cause actual harm. Holding Trump responsible for the unplanned and unintended action of any random supporter amounted to granting a “heckler’s veto” to his free speech, a principle the Supreme Court has long rejected and that the ACLU warned against in Trump’s gag order case.
Trump’s defense said his case was inextricably and “deeply intertwined” with his political candidacy, arguing that he must be allowed to support his claims that his prosecution is politically motivated and biased.
Millett acknowledged the complexity. Trump’s rhetoric “is not how I want my children to speak,” she said at one point, “but that’s really not the question.”