A three-judge appeals court at a hearing on Monday is likely to uphold but limit the confidentiality order ordered by a judge in Washington DC against former President Donald Trump, legal experts said.
Trump’s legal team has been pressured to appeal the gag order imposed by U.S. District Court Judge Tanya Chutkan in his criminal D.C. election interference case. Chutkan issued the order in October banning the ex-president from targeting court employees, associates of special counsel Jack Smith and potential witnesses in the case. She temporarily paused the order while the former president’s legal team appealed; However, she ultimately reinstated it after Smith’s team raised concerns that Trump was using the break to target witnesses like former chief of staff Mark Meadows in Truth Social posts.
“As the Court has explained, the First Amendment rights of participants in criminal proceedings must yield to the due administration of justice when necessary—a principle reflected in Supreme Court precedent, the Federal Rules of Criminal Procedure, and local criminal codes. “Chutkan wrote. “And contrary to the defendant’s argument, the right to a fair trial is not only his, but also the government’s and the public’s.”
Trump’s lawyers have claimed that Chutkan’s order violates the former president’s First Amendment rights, claiming it is designed to “muzzle the front-runner’s key policy speech for president at the height of his re-election campaign.” “alleged witnesses” are routinely allowed to attack him.” Smith’s team of prosecutors countered by monitoring Trump’s social media activity since the gag order went into effect and claimed that “criticism of this indictment” was being made without “witnesses and Targeting officials such as court staff and career lawyers, and even their families, with inflammatory language is likely to lead to harassment, intimidation and threats.”
MAGA attorney John Sauer claimed Monday that the silence order “sets a terrible precedent” and is “categorically unconstitutional,” claiming it was based on speculation The Washington Post. “All the evidence” of harassment “goes back to a completely different dynamic three years ago,” he said. There must be an imminent danger. In this case we are nowhere near there.”
“What is described here as a threat is a core message of politics, I cannot emphasize that enough,” said Sauer. “It is stormy and turbulent. It is powerful in many situations, but it is absolutely a central political speech.”
“A year ago we were in the middle of the election campaign,” said Sauer.
“When are we not in the middle of an election campaign?” asked Appeal Court Judge Patricia Millett. “If it were last November, would he still be giving political speeches?”
“I think the silence order is unconstitutional,” Sauer replied.
Sauer also argued that the government and Chutkan should not use a “heckler’s veto” against a defendant to suppress his speech. “If you engage in any scrutiny at all in the context of a heckler’s veto, you are excluding every speaker who ever speaks,” the attorney said. As the Washington Post noted, the heckler’s veto is “a shorthand for someone tuning out or shouting down someone else’s speech without due consideration” and has cropped up during disruptions to free speech on college campuses.
Politico’s Kyle Cheney reported after the questioning that it seemed “pretty clear that the panel is not pleased with Trump’s position on the gag order.”
“Trump essentially takes the position that he must commit witness intimidation/tampering to be subject to a duty of confidentiality, a position the judges say is untenable,” he later wrote add that the judges appeared inclined to limit but uphold Chutkan’s silence order.
Former acting Attorney General Neal Katyal tweeted that the arguments “didn’t go well for defendant Donald Trump” and that Sauer was having “difficulty” answering the justices’ questions.
“I can’t give an example of a statement that would ever meet his standard. His argument makes nonsense of everything the Supreme Court has said about gag orders,” he wrote.
Want a daily digest of all the news and commentary Salon has to offer? Subscribe to our morning newsletter, Crash Course.
Former federal prosecutor Renato Mariotti argued that Sauer “deliberately represents an extreme position.”
“The justices are considering whether to modify Judge Chutkan’s silence order or whether she could make factual findings to support her order,” Mariotti wrote on X/Twitter. “Trump’s lawyer doesn’t want the order changed. He wants to fight the order in its current form.”
“Trump’s lawyer is fighting tirelessly against the court’s assumptions, leaving the justices simply frustrated,” said former U.S. Attorney Harry Litman tweeted during the survey. “Things are not going well for [him].”
about Trump’s DC case