The court appears inclined to continue restricting Trump’s speech in the trial. But the gag order could be reduced

(Eric Gay/associated press)

The court appears inclined to continue restricting Trump’s speech in the trial. But the gag order could be reduced


November 20, 2023

A federal appeals court appeared inclined Monday to reimpose at least some restrictions on Donald Trump’s speech in his landmark election subversion case. But the justices grappled with how to craft a gag order that wouldn’t infringe on the former president’s freedom of speech or prevent him from defending himself during the campaign.

The three judges on the panel asked skeptical and sometimes aggressive questions from lawyers on both sides as they weighed whether to reverse a judge’s order barring Trump from incendiary comments against prosecutors, potential witnesses and court staff.

The justices laid out a litany of hypothetical scenarios that could play out in the coming months as they considered how to balance an order that protects Trump’s policies

First 1st

Amendment rights and the need to protect the criminal process and its integrity and truth-finding function.

There’s a balance to be struck here, and it’s a very difficult balance in this context,” Judge Patricia Millett told Cecil VanDevender, an attorney with Special Prosecutor Jack Smith’s office. But we need to use a careful scalpel here and not intervene. really kind of distorts the political arena, right?

VanDevender responded that he agreed, but said he believed the gag order imposed last month strikes the right balance.

The court did not immediately rule, but its questions left open the possibility that it could limit the silence order by setting parameters for what Trump, as both a criminal defendant and leading candidate for the 2024 Republican presidential nomination, can and cannot do. can say during the process. date approaching. Trump’s team has indicated it will challenge any restrictions in the Supreme Court.

Regardless of the outcome, the stakes are high given the volume and intensity of Trump’s public commentary on the case, the vast public platform he holds on social media and the campaign trail, and the limited legal precedent for restricting the speech of political candidates. let alone for the White House who are criminal defendants.

In a sign of the argument’s significance, Special Counsel Smith himself was present, sitting in the front row of the courtroom in a building just steps from the U.S. Capitol, which was stormed on Jan. 6, 2021, by rioters motivated by Trump’s false claims about the election he lost to Democrat Joe Biden.

Monday’s oral arguments lasted nearly two and a half hours, with Trump attorney D. John Sauer answering most questions while emphasizing that the silence order was too vague and an unconstitutional muzzle.

“The order is unprecedented, and it sets a terrible precedent for future restrictions on core political speech,” Sauer said. He described it as a Heckler veto, wrongly relying on the theory that Trump’s speech could one day inspire other people to harass or intimidate his targets. .

They cannot draw a causal line between social media posts and threats or intimidation if there is media attention about the case, Sauer told the court.

But those points were received coolly by the court.

Judge Brad Garcia urged Sauer to explain why the court should not take preventive action before violence occurs against potential witnesses or others. Another judge noted that a Texas woman who has since been arrested was charged with making a death threat against Trump trial judge Tanya Chutkan just one day after Trump posted on social media: If you stand with me turns on, I’ll come after you!

This will predictably increase, as will the threats. Why then is it not justified for the court to take a more proactive measure and not wait for more and more threats to emerge and intervene to protect the integrity of the process? Garcia said.

Another judge in the case, Cornelia Pillard, asked Sauer pointed questions about whether he believed restrictions on Trump’s speech were allowed, telling him: I don’t hear you putting any weight on the importance of a fair trial at all.


Millett pushed back at Sauer’s argument that Trump was merely making core political speeches.

Calling it a core political speech raises the question whether this political speech or address is aimed at derailing the criminal process,” she said.

But the justices also repeatedly wondered where to strike a balance, raising the prospect that the order could be narrow. Millett at one point expressed disbelief at the idea that Trump could not respond to criticism from rival candidates in a debate.

He has to talk to Miss Manners while everyone else is throwing targets at him?

The order has had a whirlwind journey through the courts since Chutkan imposed it in response to a request from prosecutors, who, among other things, called Trump’s repeated disparagement of Smith as deranged.

The judge lifted it just days after he entered it, giving Trump’s lawyers time to prove why his words should not be restricted. But after Trump took advantage of that pause with comments that prosecutors said were aimed at dissuading his former chief of staff from giving unfavorable testimony, Chutkan put them back in place.

The appeals court later lifted it as it considered Trump’s appeal.

Pillard and Millett are appointees of the former president


Obama. Garcia joined the bank earlier this year after being nominated by the president


Biden. Obama and Biden are Democrats.

The four-count indictment against Trump in Washington is one of four criminal cases he faces in his bid to reclaim the White House in 2024. The case will go to trial on March 4.

He has been sued in Florida, also by Smith’s team, for illegally hoarding classified documents at his Mar-a-Lago estate in Palm Beach, Florida.


A. He has also been charged in state court in New York in connection with hush money payments to porn actor Stormy Daniels, who alleged an extramarital affair with him, and in Georgia for undermining that state’s 2020 presidential election.

He has denied any wrongdoing.


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