An appeals court hears arguments about Trump's gag order in Jan. 6 case

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Former President Donald Trump, shown here at a mixed martial arts event on Nov. 11, is asking to be freed from a gag order in an election interference case. / AP

Updated November 20, 2023 at 12:13 PM ET

A federal appeals court is mulling whether to restrain the former president and current presidential candidate Donald Trump, who's asking the judges to free him from a gag order in his federal election interference case.

Trump's bombastic remarks about prosecutors and witnesses have pit his First Amendment rights against the need to protect next year's trial. Multiple courts are now grappling with Trump's remarks, a reflection of how a man who tested the limits of executive power in the White House is now testing the limits of the courts.

In more than two hours of arguments Monday before a three-judge panel in Washington, D.C., Trump attorney D. John Sauer asserted the limited gag order targets "core political speech" by a man running for the highest political office in the country. There is "near complete overlap" between Trump's defense to criminal charges and his ongoing political campaign, he added.

"The facts here don't come anywhere close to justifying this gag order," Sauer said.

But for special counsel Jack Smith and his prosecution team, the pattern is clear. Trump targets someone and his supporters respond with threats and intimidation.

Just days after the Justice Department unveiled a four-count felony indictment against Trump in Washington, D.C. over the summer, the former president posted, "If you go after me, I'm coming after you." Prosecutors said some of Trump's supporters took note and took action.

"The defendant does not need to explicitly incite threats or violence in his public statements, because he well knows that by publicly targeting perceived adversaries with inflammatory language, he can maintain a patina of plausible deniability while ensuring the desired results," assistant special counsel Cecil VanDevender wrote in a recent court filing.

He cited numerous examples in court papers: a woman in Texas has been charged with making threats against U.S. District Judge Tanya Chutkan, who's overseeing the trial in Washington, D.C. Another judge in New York presiding over a civil fraud case involving Trump has faced hundreds of threatening calls and letters. And after Trump shared what he said was former President Obama's address online this year, a heavily armed man showed up there.

That threat has not abated or "gone stale," VanDevender argued Monday to the appeals court. Trump has "incessantly" made inflammatory posts to a national audience, he said.

Appeals court Judge Bradley Garcia pointed out that as the political campaign intensifies next year, Trump's rhetoric may follow suit. "As this trial approaches," the judge said, "the atmosphere is going to be increasingly tense. Why does the district court have to wait and see" what Trump might post then, as opposed to taking action now to prevent witness intimidation or threats of violence?

Sauer, the attorney for Trump, said his language can be "rough and tumble" and "hard-hitting in many cases," but he said it's been directed at public figures, like prosecutors and former members of his administration.

"It's not really how I want my children to speak, but it's really not the question," Judge Patricia Millett said. At another point, the judge talked about the need to use a "careful scalpel" to avoid intruding into the political arena.

The three judges appeared to struggle with how to balance the heavy weight they afford to the First Amendment with the criminal trial process. The argument, initially scheduled to last 40 minutes, extended nearly two-and-a -half hours.

"With thanks to counsel for your helpful presentations and your patience with us, this case is submitted," said Judge Millett. She offered no timetable for the court's ruling.

The judge who will oversee next year's trial, Tanya Chutkan, has limited Trump from attacking prosecutors, likely witnesses, and court staff. The judge said Trump, as a criminal defendant, does not have limitless First Amendment rights. And she said he does not have "carte blanche to vilify and explicitly encourage violence against public servants."

Under the terms of her limited gag order, which has been paused pending the appeal, Trump is still free to make remarks about the Biden administration and the Justice Department; to assert his innocence; and to criticize his campaign rivals.

Trump's lawyers say the gag order is both vague and too broad, and the Justice Department has provided no evidence of any "actual or imminent threat" to the trial next year.

"The prosecutors and potential witnesses addressed by President Trump's speech are high-level government officials and public figures, many of whom routinely attack President Trump in their own public statements, media interviews, and books," Trump attorneys D. John Sauer and John Lauro wrote in court papers.

In a written statement Friday, the Trump campaign criticized the gag order and urged the higher court to reverse it: "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, just weeks before the Iowa caucuses. No court has ever upheld a gag order on core political speech at the height of a campaign."

The gag order issue is the first big dispute to come before the appeals court but it won't be the last. Trump is trying to get the D.C. charges against him dismissed by arguing he enjoys sweeping presidential immunity, and that this case violates double jeopardy because he won an acquittal from the U.S. Senate in an impeachment proceeding related to the Capitol siege on Jan. 6, 2021.

If Judge Chutkan rules against him on either of those issues, Trump has signaled he would appeal to the D.C. Circuit and ultimately, the Supreme Court, which could delay his trial set for March 2024.

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