WASHINGTON — Lawyers for Donald Trump and the Justice Department clashed Monday in a federal appeals court, where the former president’s lawyers argued before a panel of skeptical judges that his constitutional rights have been violated by a gag order prohibiting him from disparaging to witnesses and prosecutors in the case of electoral interference.
The judges did not immediately issue a decision, but indicated in their questioning that they could maintain the gag order and reduce its scope. They repeatedly pressed Trump’s lawyer on his argument that his speech cannot be restricted at all and questioned the government lawyer about provisions of the gag order that prohibit Trump from criticizing special counsel Jack Smith and his staff and potential witnesses. high profile in the case.
The two sides began arguing in Washington before the three-judge panel of the U.S. Court of Appeals for the D.C. Circuit shortly after 9:30 a.m. ET, with Smith, who made the decision to impeach Trump, sitting in the front row.
The hearing was expected to last about an hour, but it lasted more than twice as long as judges peppered both sides with questions.
Trump’s lawyer, D. John Sauer, argued that leaving the gag order in place would set a “terrible precedent” over “restrictions against core political speech.”
The judges, two nominated by former President Barack Obama and one by President Joe Biden, issued an order this month to suspend the gag order until they could hear arguments in the appeal. Pressed by one of the prosecutors on the argument that Trump’s public comments about witnesses and officials have led to people being “threatened and harassed,” Sauer said: “That’s all based on evidence that’s three years old.” He said Trump has commented on the case “incessantly” and that there is no evidence that anyone in the election interference case was threatened.
Judge Bradley Garcia, Biden’s nominee, asked Sauer: “Why does the district court have to wait and see the threats come, instead of taking reasonable action in advance?”
Three-quarters of voters say they are concerned about President Joe Biden’s age and mental fitness, while nearly two-thirds are concerned about the multiple lawsuits facing former President Donald Trump.
Judge Patricia Millet asked if there were any First Amendment concerns related to Trump hypothetically calling a witness and telling him to be loyal. Sauer responded that that could be a violation of the conditions of his bail and would probably not trigger constitutional problems. The judge then asked if that dynamic would change if Trump made a similar comment on social media or at a political rally.
“If you are communicating with the American electorate?” Sauer responded. “I would have to know more about the context,” she said, adding that he would be “further removed” if he made such a comment on social media.
Asked whether it was necessary to balance Trump’s political speech with concerns about threats, Sauer said his client should have the right to “absolute freedom” to speak his mind.
The justices seemed skeptical of that argument, but also had questions for Smith’s office about the scope of the gag order, including how it protects Smith and his team. Smith’s attorney, Cecil VanDevender, told the judges that his office has “been subject to multiple threats” and “intimidating communications” after Trump published “inflammatory posts” about the special counsel.
One of the judges said Smith probably has “tough enough skin” not to be intimidated by such posts.
The same judge also questioned the order’s protection over criticism of potential witnesses such as retired Gen. Mark Milley, former chairman of the Joint Chiefs of Staff, who has been highly critical of Trump.
He noted that a scathing social media post came a day after he criticized the former president in an interview. When the justices said they were skeptical that Trump’s posts would affect Milley’s testimony, VanDevender said they could have an effect on other witnesses who are testifying.
The judges also questioned where the line existed on how Trump would have the right to defend himself, but only to a point. VanDevender said Trump could say that a public figure who would testify against him said something that is “untrue,” but he couldn’t call that person a “slimy liar.”
“He can say it’s a lie. Can he say that person is a ‘liar’?” Millet asked.
“Yes,” the lawyer responded.
“But can’t you say ‘liar’?” the judge continued. “There is a balance to be struck here, and it is a very difficult balance in this context,” he said, adding: “We have to use a very careful scalpel.”
Trump has maintained that, as a presidential candidate, his speech should not be impeded in any way.
“The Gag Order appoints an unelected federal judge to censor what the leading candidate for president of the United States may say to all Americans,” Trump said in a statement Friday. “No court has ever upheld a gag order on central political speech at the height of a campaign,” he added, calling for the ruling to be “quickly overturned.”
Prosecutors in Smith’s office have argued that the order is necessary for a fair trial and that Trump’s social media posts and public comments about potential witnesses and attorneys in the case raised risks of witness harassment and intimidation.