How do you restrict the free speech rights of a man who would say anything, perhaps has the largest microphone in the world and thousands of loyal followers following his every command?
The question is proving vexing as the Justice Department struggles to defend a blanket silence order against Donald Trump – and the three-judge panel of the Washington DC appeals court showed some skepticism about whether the current restrictions were appropriate.
The stated purpose of the gag order is to stop the former president from intimidating witnesses in his 2020 coup case in Washington, DC. But on Monday, federal authorities found themselves in an impossible situation: setting limits on free speech that bordered on Orwellian, even though they knew that falling short could give Trump the leeway to provoke threats and even violence.
During court hearings in Washington condemning the judge’s silence order, the justices appeared to understand the need to put limits on Trump’s relentless stream of online threats against prosecutors and witnesses. But at least one appeals judge appeared disturbed by the extent to which the U.S. government is trying to silence the leading Republican presidential candidate ahead of the 2024 election.
The court debate highlighted a Justice Department’s unprecedented difficulty in taking action against a former president who, in turn, revolted against the very government he once led – while adhering to American principles of free speech and expression.
They debated U.S. District Judge Tanya Chutkan’s Oct. 17 hearing commandIt said the former president could continue his campaign and claim the prosecution was politically motivated – but he could not continue to target individual court employees, prosecutors and witnesses.
Chutkan’s forceful decision came after Trump repeatedly directed his hatred at the judge herself, calling special counsel Jack Smith “deranged” and deriding prosecutors as “thugs.” Especially Trump said His administration’s top military official – General Mark A. Milley – was a “traitor” who had allegedly committed a crime “that would previously have been punishable by death!”
Of course, Trump immediately responded to the gag order by denigrating Judge Chutkan.
The D.C. Circuit Court of Appeals is currently reviewing this situation, and the stakes are as high as Trump Tower. His hostile rhetoric has already led to at least one death threat against Judge Chutkan. But his passionate MAGA brigade is already interpreting any legal attempt to restrict him as a sinister conspiracy to prevent his return to the White House.
The prospect of Trump-inspired political violence is real enough that MAGA threats now have a name. On Monday morning, appeal judge Cornelia Pillard coined a term as she expressed concern about “comments that will be triggering.” the zeal of the loyalists.”
But the justices recognized the inherent difficulty of effectively but fairly silencing Trump.
A contentious back-and-forth brought the tension to a head on Monday when Judge Patricia A. Millett questioned the way the DOJ plans to use the lower court’s gag order to prevent Trump from commenting publicly what he thinks about the credibility of a witness. Millett presented a hypothetical scenario in which one of Trump’s many former lieutenants testifies against him in court and then joins a campaigning Democratic politician on stage to discuss Trump’s authoritarianism.
“You’re telling me that under the First Amendment… former President Trump wouldn’t allow him to say that Mr. X is a liar? Is he lying about what he said? “He can’t say that?” Millett asked incredulously.
“He can say, ‘I was a good president,'” DOJ attorney Cecil Woods responded to VanDevender.
Prosecutors promised that they would not use the gag order as a weapon to require the judge to send Trump to prison in such a situation, but the appeals judge was not satisfied with that.
“I don’t want to know what the government is going to do move At. I want to know what’s in the order,” she said. “He can say that they are speaking untruths… but he cannot say that they are lying?”
“Yes,” VanDevender said.
The distinction between “speakers of untruth” and “liars” did not seem to convince Millett.
“We need to use a careful scalpel here,” Millett later warned. “We live in a free society where it is incredibly difficult for the government to lock anyone up. That has to be. This is the tool of repressive governments.”
Questioning by the appeal judges suggested they intended to soften Chutkan’s confidentiality. If they do this, a similar situation will arise in New York City. Last week, an appeals judge temporarily suspended a New York judge’s gag order that barred Trump from directly attacking a court clerk and directing his MAGA loyalists at court staff during his bank fraud trial.
But much of this morning’s two-hour court hearing showed that appeals judges recognize the need to put some limit on Trump’s increasingly bellicose comments toward his right-wing supporters.
John Sauer, who was once Missouri’s top lawyer and now represents Trump, claimed that the billionaire could do whatever he wanted – and no one should impose any restrictions in advance.
Appeals Judge Cornelia Pillard specifically noted that she found it “revealing” that Trump’s side “places so much credence on the First Amendment” — but not on court orders intended to ensure public safety.
The aftermath of the Trump-inspired January 6 insurrection was the focus of their investigation. Pillard asked how Trump’s side would justify a hypothetical situation – albeit one perfectly consistent with the former president’s past behavior – in which Trump attacks former Vice President Mike Pence on the eve of his testimony at the upcoming trial in Washington. by saying on TruthSocial, “Mike Pence can still fix this, Mike Pence can still do the right thing.”
It was a clear reference to Trump’s last attempt to intimidate his vice president on January 6, 2021.
“That would be more problematic than the statements we have on record. “But is there a reasonable way to influence Mike Pence’s testimony?” asked Sauer.
“Does this count as telling a witness?” Pillard examined.
“Depends on the context,” he shot back.
“It was tweeted on his social media… You won’t get any further context,” Pillard responded, refusing to budge.
Sauer then argued that Trump should not be prevented from “simply commenting publicly to the media,” and reiterated that any restrictions on free speech would only be justified after a mini-trial that would be initiated after the comment was made. The arguments reflected Trump’s no-rules approach to governing, which he displayed during his time as a real estate magnate in 1980s New York and during his one-year term as president.
“It does exist NO “Prophylactic rule, no circle around communication with witnesses that the district court could draw?” Pillard asked in a surprised voice.
“That would have to be based on convincing evidence,” Sauer replied.
When appeals judge Bradley Garcia noted that most of the examples of Trump’s threats came from 2020, the Justice Department laid out the serious problems and reminded the justices that the same threat displayed during the attempted coup continues today . The MAGA message, once directed against election officials and poll workers for doing their jobs honestly and fairly, is now directed at judges and prosecutors in Georgia, New York and Washington for seeking to hold Trump accountable for alleged past crimes pull.
“That’s exactly the heart of what this case is about – the post-election period,” VanDevender said. “The idea that there was some momentum in 2020 that has waned or gone stale is certainly wrong.”