Court seems inclined to keep restricting Trump’s trial speech. But gag order could be narrowed
WASHINGTON — 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 judges wrestled with how to craft a gag order that doesn’t infringe on the former president’s free speech rights or prevent him from defending himself on the campaign trail.
The three judges on the panel asked skeptical and at times aggressive questions of attorneys on both sides while weighing whether to put back in place an order from a trial judge that barred Trump from inflammatory comments against prosecutors, potential witnesses and court staff.
The judges raised a litany of hypothetical scenarios that could arise in the months ahead as they considered how to fashion a balance between an order that protects Trump’s First Amendment rights and the need to protect “the criminal trial process and its integrity and its truth finding function.”
“There’s a balance that has to be undertaken here, and it’s a very difficult balance in this context,” Judge Patricia Millett told Cecil VanDevender, a lawyer with special counsel Jack Smith’s office. “But we have to use a careful scalpel here and not step into really sort of skewing the political arena, don’t we?”
VanDevender replied that he agreed but said he believed that the gag order imposed last month does strike the appropriate balance.
The court did not immediately rule but its questions left open the possibility that it might narrow the gag order, setting parameters on what Trump, as both a criminal defendant and the leading candidate for the 2024 Republican presidential nomination, can and cannot say as the trial date nears. Trump’s team has signaled that it will fight any restrictions to the Supreme Court.
No matter the outcome, the stakes are high given the volume and intensity of Trump’s public comments about the case, the massive public platform he holds on social media and the campaign trail, and the limited legal precedent for restricting speech of political candidates — let alone for the White House — who are criminal defendants.
In a sign of the argument’s import, special counsel Smith himself attended, sitting in the front row of the courtroom in a building just blocks from the U.S. Capitol stormed on Jan. 6, 2021, by rioters motivated by Trump’s false claims about the election he lost to Democrat Joe Biden.
Monday’s arguments spanned nearly two-and-a-half hours, with Trump lawyer D. John Sauer fielding the majority of questions as he pressed his case that the gag order was overly vague and an unconstitutional muzzling.
“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’s veto,” unfairly relying on the theory that Trump’s speech might someday inspire other people to harass or intimidate his targets.
“They can’t draw a causal line from any social media post to threat or harassment when we have wall-to-wall media coverage of this case,” Sauer told the court.
But those points were greeted coolly by the court.
The judges also repeatedly wondered where to strike a balance, raising the prospect that the gag order could ultimately be narrowed. Millett at one point expressed incredulity at the idea that Trump would not be able to respond to criticism by rival candidates in a debate.
