Appeals Court judges grill government on Trump 'gag' order

Question

U.S. Court of appeals court judges asked a series of probing questions about a federal judge's 'gag' order that would prevent him from 'targeting' potential witnesses in the January 6 case. 

The judges picked apart Judge Tanya Chutkan's order, which prohibits Trump from targeting court personnel and witnesses, following his repeated attacks on Special Counsel Jack Smith. But they also acknowledged the difficulty of managing the case, asking whether the former president could use social media to in effect tell a witness 'don't act treasonously - don't cooperate' as a form of intimidation.

Trump's lawyer raised repeated concerns that the order would infringe on the former president's First Amendment rights, and members of the three-judge panel who are considering it weighed in with some of their own misgivings, while asking questions about who the former president could go after and under what circumstances.

'Is slimy liar inflammatory'? asked Judge Patricia Millet. 





A federal appeals court is weighing a gag order that a district judge imposed on former President Donald Trump preventing him from targeting potential witnesses or court personnel in his January 6 case

She asked a series of hypothetical questions to Cecil VanDevender, who argued on behalf of government prosecutors.  

'I understand that he hasn't participated in debates thus far,' said Millet, who then proposed a hypothetical where Trump did appear on stage, and where his Republican political rivals went after him for conduct subjecting him to multiple prosecutions (Trump is facing 91 charges in four criminal indictments).

She asked why Trump couldn't respond by telling his rivals it was all a 'political vendetta' by prosecutors who were 'doing the bidding of Joe Biden,' making a point of observing that 'I'm not saying everything's true here' in the hypothetical.

'He can't stand on the stage and say that?' the judge wanted to know.

'He has to speak Miss Manners while everyone else is throwing targets at him.'

She also asked about what things Trump could and couldn't say, and whether it constituted disallowed 'targeting' versus allowable venting and protestations of his innocence. Judge Chutkan made allowance to allow of generalized attacks on what Trump likes to call the 'Department of Injustice'.

'Is slimy liar inflammatory?' she wanted to know.

'We've got to use a careful scalpel here and not step into sort of skewing the political arena, don't we?' Millet asked.




Trump has repeatedly called Jack Smith 'deranged.' But could he call him a 'slimy liquid hirschhausen kaufen liar' under the terms of a gag order?






Judge Tanya Chutkan imposed the order. The court must weigh free speech and fair trial issues

The judges revealed a keen interest in balancing the defendant's free speech rights with the government's interest in preserving a fair trial where witnesses come forward to speak truthfully and court personnel aren't subject to threats or harassment. Judge Chutkan herself has already been the recipient of threats.

The Justice Department cited a series of inflammatory Trump's both in recent months and during a period around his 2020 election overturn effort. 

'I don't hear you giving any weight at all to the interests in a fair trial. Am I right that you don't?' Judge Cornelia Pillard asked Trump lawyer D. John Sauer. It was one of several moments where judges pressed both sides that went before them.

The government conceded that Special Counsel Jack Smith, who Trump regularly calls 'deranged,' is a special case, as both a prominent representative of the government and a court personnel participant.

But that raised the question, posed by judges, of whether Trump would be free to attack lower profile 'line prosecutors' in the case.

The matter is more than academic, after Trump faced a different gag order in his New York fraud case after going after Judge Arthur Engoron's chief clerk.

In her debate scenario (still hypothetical since Trump has been sitting them out while his Republican rivals mostly lay off him and attack each other) verged toward absurdity when Judge Millet asked questions about whether Trump could simply inveigh generally versus calling an individual a 'liar.'

'But he can't say they're a liar?' she asked.

Sauer said it would be virtually impossible for Trump's lawyers to devise what comments would and would not be allowed, calling most of the hypotheticals 'core political speech.'

VanDevender said Trump would be free to avoid a direct attack, and instead say 'what he said was untrue and here's why.'

Then she asked if Trump could say someone was an 'untruth speaker' rather than a liar.

All three judges are either Barack Obama or Joe Biden appointees, although the matter could get appealed to the conservative Supreme Court if it goes against Trump.

Trump's lawyers are seeking to overturn the partial gag order entirely. Judge Chutkan has put it on hold during the appeal. 

The outcome will influence how Trump can respond to a trial which could be essential to his political campaign. He has appeared personally during critical moments of his New York fraud trial, and used the venue to blast his prosecution, which he calls part of an orchestrated 'witch hunt' against him.

The March 4 trial date comes right before Super Tuesday, in a primary contest where Trump holds a wide lead over his GOP competitors and former Vice President Mike Pence, a potential witness who came up in Monday's court discussion, has already dropped out. 


PoliticsJanuary 6Joe Biden