Judges Grill Trump, Jack Smith’s Lawyers Over Bid to End Gag Order in DC Election-Subversion Case

A three-judge appellate panel on Monday sparred for more than two hours with lawyers for Donald Trump and Special Counsel Jack Smith's office over the former president's efforts to negate a partial gag order limiting his public comments about his Washington, D.C. election-subversion criminal case.

U.S. District Judge Tanya Chutkan formally issued the order Oct. 17, prohibiting not just Trump but all parties to the case from making statements that “target” prosecutors or their staff, defense lawyers or their staff, court staff and supporting personnel, and "any reasonably foreseeable witnesses or the substance of their testimony."

Trump appellate attorney John Sauer, a former Missouri solicitor general, argued before the U.S. Court of Appeals for the District of Columbia Circuit that Chutkan's gag order violates the former president's First Amendment rights.

"The gag order in this case installs a single federal district court judge as a filter for core political speech between a leading presidential candidate and virtually every American voter in the United States at the very height of a presidential campaign," Sauer said during proceedings held in person at the D.C. federal courthouse and live streamed on the court's YouTube channel for more than 12,000 audio listeners.

"The order is unprecedented and it sets a terrible precedent for future restrictions on core political speech," Sauer added.

While the court had allocated only 20 minutes for the Trump lawyer's initial presentation, Sauer stood before the judges for about 75 minutes as they questioned him on his legal arguments. All three judges expressed skepticism about his position that the gag order could not be issued as a preventative measure.

"Counsel, I think the concern is that it seems, at times, your position would be that the district court's hands are tied until we actually know that there has actually been harm to the integrity of the trial — for example, that a witness has been intimidated," Judge Bradley Garcia said. "...What evidence short of that would the district court need before it could step in and issue an order like this?"

"Solidity of evidence that demonstrated an imminently impending threat," Sauer replied.

Much of the discussion centered on hypothetical scenarios posed by the judges about potential public communications by Trump, which Sauer was generally hesitant to address directly.

The jurists pressed Sauer on whether he was arguing Trump should be allowed to make public comments at rallies and in social media posts about witnesses which would be prohibited if he were making them directly to the witnesses in the case.

"Legion are the cases that say there's no right of a criminal defendant to try his case in the media — that's what the court is for," Judge Cornelia Pillard said. "And of course, what's difficult about this case is that there is some substantive overlap between what the defendant wants to do in campaigning and what the prosecution here is doing in the case. But that to the extent that there's an ability to distinguish between trying this case in the media and running for president, clearly, he has no entitlement to do publicly what is well-established, he could not do, one-on-one, to that witness."

"There's not some overlap," Sauer said in response. "There's near complete overlap between the issues in the case and the issues in the political campaign."

Appearing for Smith's prosecution team, Assistant Special Counsel Cecil VanDevender countered that Chutkan's order is necessary to protect the criminal proceedings.

"The correctly found that the defendant's well-established practice of using his public platform to target perceived adversaries, including trial participants in this case, poses a significant risk to the fairness and integrity of these proceedings," VanDevender said. "The order that the district court crafted to prevent those risks should be affirmed for three principal reasons: First, the unique factual record before the district court; second, the unusual narrowness of the resulting order; and third the recent evidence demonstrating that the defendant is fully capable of understanding and complying with the order while it is in effect."

The panel questioned VanDevender on the scope of the gag order for about 60 minutes, far beyond the 20 minutes he was also allocated.

Sauer was offered four minutes for a rebuttal but declined, saying he had nothing further.

The panel overseeing the appellate proceedings is expected to make a ruling in the coming weeks. It is comprised of Pillard and Judge Patricia Millett, both appointees of former President Barack Obama, and Garcia, an appointee of President Joe Biden.

After the arguments, legal experts and observers said they expected the order to stand, albeit with a few changes.

National security attorney Brad Moss said the D.C. Circuit appeared poised to "further polish and refine Chutkan's order to give Trump clearer guidance on what he can say" while upholding its permissibility.

Andrew Weissmann, a former lead prosecutor in Robert Mueller's special counsel's office, said it appeared the gag order "will be upheld, at the very least, as it applies to public figures where Trump's targeting is with respect to the trial."

A loss by either side can be appealed to the entire D.C. Circuit, and then up to the U.S. Supreme Court, though there's no guarantee the justices would agree to hear the dispute.

Trump is charged with four federal felonies in the case alleging he obstructed the 2020 presidential election and has pleaded not guilty to all charges. His trial is scheduled to begin on March 4, the day before Super Tuesday when 14 states vote including California, Colorado, North Carolina, Texas and Virginia.

The on-again, off-again prohibition against Trump or any other party to the case making public statements that "target" prosecutors, potential witnesses and others has been the subject of fierce litigation between prosecutors and Trump's defense team.

Trump’s legal team responded to the gag order by filing an immediate appeal with the D.C. Circuit Court of Appeals and a separate motion asking Chutkan to remove the gag order while the appeal was pending. Chutkan temporarily paused the gag order to give both parties an opportunity to present briefings on the topic before reinstating the order in a ruling on Oct. 30.

Trump’s legal team in early November escalated the matter, filing an emergency motion with the D.C. Circuit Court of Appeals asking for the gag order to be administratively paused while their appeal is pending.

On Nov. 3, the three-judge panel of the D.C. Circuit Court of Appeals that heard arguments on Monday ordered an administrative pause of the partial gag order issued by Chutkan.

In a 67-page brief filed Nov. 14, Smith's office cited a litany of fiery social media posts and statements by the former president surrounding the case and alleged there is a "pattern, stretching back years," in which people publicly targeted by Trump are "subject to harassment, threats, and intimidation."

In a reply brief filed last Friday, Trump's legal team said the gag order "violates a long list of the First Amendment's most basic doctrines."

"The gag order," Trump's attorneys argue in the brief, "installs a single federal judge as a barrier between the leading candidate for President, President Donald J. Trump, and every American across the country."