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Court eyes adjusting Trump gag order

His attorneys say ruling toes line between First Amendment, ‘censorship’


A federal appeals court in Washington left open the possibility of adjusting the terms of the order or even narrowing the scope of the people covered by the gag order placed on former President Donald Trump in the criminal case accusing him of plotting to overturn the 2020 election, including by potentially freeing Trump to attack Jack Smith, the special counsel overseeing the federal cases against him.

The trial judge, Tanya Chutkan, imposed the gag order in October in U.S. District Court in Washington, forbidding Trump from publicly maligning any prosecutors, potential witnesses or court employees involved in the case.

But Chutkan explicitly permitted Trump to criticize the Justice Department, President Joe Biden and herself. She also allowed him to maintain that the prosecution itself was a partisan retaliation against him.

Trump swiftly appealed, with his lawyers arguing that the order was the “essence of censorship” and infringed on his First Amendment rights in the midst of a campaign — one in which he has repeatedly complained that the cases against him are political persecution. The appeals court has suspended the gag order while it weighs the challenge.

At the hearing, the three judges from the U.S. Court of Appeals for the District of Columbia Circuit pushed hard at the argument that Trump’s social media posts should enjoy absolute protection under the First Amendment as examples of “core political speech.” They questioned whether the posts could in fact be something very different: examples of “political speech aimed at derailing or corrupting the criminal justice process.”

The judges also suggested that a gag order could be imposed on Trump as a “prophylactic” measure of protecting people involved in the case from threats or acts of harassment that had not yet occurred. The panel cited a longstanding “dynamic,” reaching back to the 2020 election, in which Trump mentioned certain people in his posts who later suffered intimidation from others.

“As this trial approaches, the atmosphere is going to be increasingly tense,” Judge Brad Garcia said. “Why does the district court have to wait and see and wait for the threats to come, rather than taking a reasonable action in advance?”

Each of the three members of the appellate panel assigned to the case was nominated by a Democratic president: Judges Patricia Millett and Cornelia Pillard were Barack Obama appointees, as was Chutkan to the district court. Garcia was appointed by Biden.

D. John Sauer, a lawyer for Trump, countered that events three years ago were insufficient to meet the standard for gagging Trump now. He argued that it would be an impermissible “heckler’s veto” to bar Trump from speaking freely amid an election on the rationale that his remarks “might someday inspire some random third party” to make threats.

There are few legal guideposts directly on the issues raised by the Trump gag order fight. Past Supreme Court cases that have addressed gag orders have focused on lawyers or reporters, rather than defendants. And they have generally centered on keeping juries from being tainted by information about trials rather than on preventing threats and harassment that could jeopardize the integrity of the criminal justice process.

Complicating matters further, Trump has blurred the lines between his criminal cases and his presidential campaign, using court appearances to deliver political talking points and employing public remarks to assail his prosecutions.

The appellate judges appeared to be seeking a way to balance protecting the integrity of the election interference case and the people involved in it while preserving Trump’s rights to respond in public to denunciations by his political adversaries or critics, some of whom are likely to be witnesses against him in the case — such as former Vice President Mike Pence.

Underscoring the legal difficulties, the arguments ran far longer than the time they had been allotted. The plan had been that each side would get 20 minutes, but the panel kept grilling Sauer for nearly four times that. Its questioning of Cecil Vandevender, a lawyer working for Smith, went on for nearly an hour.

It is not clear how quickly the three-judge panel of the appeals court will decide on whether to rescind the gag order or to keep it in place as the case moves toward its trial date. Either side could also appeal the eventual decision to the Supreme Court.