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A US Appeals Court on Monday heard an appeal from former President Donald Trump to lift a gag order imposed by a federal district court. That gag order was placed on the former president by U.S. District Judge Tanya Chutkan.
Judge Chutkan, who is overseeing one of Trump’s criminal trials, placed the order after Trump attacked courtroom staff and others on social media. Those online attacks led to court staff receiving threats and harassing messages by the former president’s supporters.
D. John Sauer, Trump’s Lawyer and the former Missouri Solicitor General, argued the gag order is a violation of Trump’s free speech.
Specifically, Sauer says Trump’s First Amendment rights have greater protection as “core political speech”, since Trump is running for office.
Judge Patricia Millett, one of the three appellate judges hearing the case, pressed Sauer on why Trump’s candidacy was a core factor.
“Would your position be any different if this was a year ago?” Millett asked Sauer, several times.
Sauer argued the gag order would still be a violation of the First Amendment, but the aspect of political speech raises the bar.
“So this is basically the icing on the cake” for your argument? Millet pressed.
Trump’s effort to lift gag order comes after Judge who issued it receives death threats
As the arguments heated up, Judge Cornelia Pillard jumped in to press Sauer on why a court shouldn’t be able to place restrictions on Trump’s speech to prevent potential harm.
“Your client is subject to the law,” Pillard stated.
“The [gag] order is intentionally prophylactic,” she continued. “It’s intentionally [meant to prevent] harms that have yet to occur.”
Sauer rebuffed the judge’s argument by claiming there was “no evidence of threats or harassment in this particular case.” Sauer also claimed that there is “no evidence of a single post” from the former president directly targeting individuals who are not political figures.
This, however, is not true. The Judge placed the gag order after Trump attacked courtroom staff and the wife of the prosecutor on social media. It is one of two gag orders the president is facing since his legal troubles began.
In fact, Judge Chutkan received death threats from at least one Trump supporter. Those specific and credible threats led to that Trump supporter’s arrest.
Sauer, however, asserted there cannot be limits on Trump’s freedom of speech unless there is an “imminent threat”.
“So the court’s hands are tied until we know that harm has occurred?” Judge Bradley Garcia asked. “What else would the district court need before it could step in and implement an order like this?”
Judges point to precedence in other cases to dispute the former President’s legal claims
Garcia reminded Sauer the Supreme Court itself has drawn distinction for between speech restrictions before. Those restrictions vary based on an individual’s connection to a case.
In the 1991 case of Gentile v State Bar of Nevada, a defense attorney was reprimanded after holding a press conference the day after his client was indicted.
The Supreme Court ruled that Mr. Gentile’s participation in the trial holds him to a higher standard of speech. That higher standard does not necessarily violate his First Amendment rights.
Judge Garcia wondered aloud how this rule would apply to an attorney, but not to a defendant, like Trump.
“What’s your best argument that criminal defendants shouldn’t be considered a participant in the trial?” Garcia asked Sauer regarding Trump.
Sauer seemed to insinuate that the Gentile case didn’t apply to Trump’s argument, but Garcia pushed back.
“Our job is to read these Supreme Court cases, and it seems they are drawing a very clear line between participants and not,” Judge Garcia said.
With appeal, Trump’s team strives to set new precedent of immunity from speech restrictions for political officials
The appellate court judges seemed unconvinced that Trump should receive a pass based on his status as a campaign official. As the argument continued, both Judges Millett and Pillard pressed Sauer to clearly define where one should draw a line between constitutional and unconstitutional restrictions on free speech.
“Your position is that when a participant in trial is engage in a political speech, there can be no limitation imposed,” Pillard said.
“This is your test,” she continued. “It seems incumbent upon you to be able to explain to me what a court could do to protect the integrity of criminal proceedings.”
Millett built on Pillard’s argument, with both asking Bauer specific hypotheticals to determine how Trump’s legal team determines the constitutionality of a restraint.
As a condition of pre-trial release, President Trump is required to refrain from speaking with or placing public pressure on witnesses.
When asked if the president calling a witness and telling them not to cooperate is a violation of his condition of release, Sauer agreed it was. He also conceded it was not a violation of the President’s First Amendment rights.
When asked the same question about Trump saying the same thing from a rally stage, Sauer again conceded Trump would be in the wrong.
However, when asked about Trump taking to social media to push the same message, Sauer argued that constituted free speech.
“Why is it different using phone or megaphone” as opposed to using social media, the judges mused.
All three judges seemed confused by Sauer’s arguments that communication restrictions for a release order doesn’t violate First Amendment, but a gag order does.
Judges signal inclination to reinstate gag order, but narrow its parameters
According to reporting from CNN, the appellate judges concluded the hearing seemingly inclined to reinstate the gag order. Still, the former President may see a small victory with the scope of the order potentially narrowing.
The judges’ arguments with prosecutors suggest they remain unconvinced that Trump criticizing special prosecutor Jack Smith undermines the case.
In questioning the prosecution, Judge Pillard said “it can’t be that [Trump] can’t mention Mr. Smith.” Pillard suggested that part of the gag order may be unreasonable, since the case is already so highly publicized.
Trump can’t “speak Miss Manners while everyone else is throwing targets at him,” Pillard rationalized.
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