Judges asked attorneys to balance their cases against the First Amendment and the need to protect trial proceedings.
The federal appeals court in Washington heard arguments on the gag order imposed on former President Donald Trump in a federal criminal case that accuses him of having interfered with the 2020 elections.
Many criminal defendants choose to say nothing at all, but President Trump faces 91 charges in four separate criminal counts, and the indictments have become a major issue for 2024 voters.
The fact that he is in the middle of a political campaign is the prime argument defense attorneys are using in their appeal, but the panel pushed back that this must be balanced with the interest of the court in protecting the trial proceedings.
John Sauer, legal counsel representing President Trump, called the order an “insupportable heckler’s veto,” during the “highly contested campaign for the highest office in the United States of America.” Gag orders have been issued in criminal cases many times in the past, but to restrict the political speech of a campaigning candidate adds a layer of complexity to the issue that Mr. Sauer argued would set a terrible precedent.
“What you have here is a rationale that says this speech that is targeted by the gag order might—there’s no evidence for this—but it might, someday, inspire some random third party to engage in some action that might be harassment or threats to witnesses,” Mr. Sauer said.
A “heckler’s veto” has been used as a legal term for when someone is denied the right to speak by the government, in anticipation of negative effects. Mr. Sauer said the U.S. Supreme Court has ruled multiple times against such a rationale.
Judges asked whether the defense’s position would be different if this had all happened a year ago before he launched his campaign, and if so, wouldn’t the campaign be a nonissue?
“I would say it is the crown jewel in at least seven … independent First Amendment precepts violated,” Mr. Sauer said.
The original gag order, which has been temporarily lifted pending appeal, prohibited all parties from making statements that “target” the prosecution and defense legal teams, court staff, and any potential witnesses, including the substance of their potential testimonies.
The appeals court panel includes Judge Patricia Ann Millett, appointed by President Barack Obama, Judge Cornelia Pillard, also appointed by President Obama, and Judge Bradley Garcia, appointed by President Joe Biden.
The judges pointed to U.S. District Court findings that said President Trump had made statements, after which other citizens mentioned were harassed.
Mr. Sauer argued that those examples used by the prosecution and reiterated by the judge were from three years ago, and after three months, during which President Trump has made many statements about the case, they have not produced evidence related to this case. He reiterated this point when judges gave him hypothetical situations, and asked whether the court’s concern about protecting witnesses wasn’t enough.
He said the example cases used to justify the gag order weren’t comparable; in one case the order was to prevent parties from leaking confidential information obtained through discovery.
“The order is intentionally prophylactic. It’s intentionally protective against harms that are yet to occur,” one judge said. “And in the distinctive context of protecting the integrity of a trial process, that can be a sufficient interest, for a suppression of speech.”
The judges pressed him to provide a standard wherein a gag order would be acceptable.
Mr. Sauer argued for evidence there was a “clear and present danger,” and said the “substantial likelihood” failed to meet that standard, but neither applied in this case. He said he could find no cases that target something in between these two standards.
“Clear and present danger” is a balancing test, not a mechanical standard, based on recent U.S. Supreme Court rulings, the judges pushed back. They said the difference was essentially whether participants and outsiders in a case need to meet the same standard.
“What speech would be … captured that isn’t already illegal?” a judge asked. Mr. Sauer said he could not think of an example. “You can make one up.”
Judges rejected the argument that political speech was enough of a standard to protect President Trump’s speech, saying it needed to be balanced against the court’s interest of protecting the trial process.
Judges pointed to the fact that prosecutors had already established a pattern, or dynamic, where President Trump makes posts, and threats follow. Mr. Sauer argued against that as applicable evidence that would support a gag order, and said it in fact suggested one wasn’t necessary.
“It is undisputed that President Trump has been posting about this case almost incessantly since it was filed and they haven’t come forward with a single threat that was arguably inspired by any of this,” Mr. Sauer said.
One of the judges pointed to a threatening message the special counsel’s office received, and Mr. Sauer said it was from an unemployed individual who does not follow social media but watches the news all day.
“As this trial approaches, the atmosphere is going to be increasingly intense. Why does the district court have to wait and see and wait for threats to come, rather than take a proactive approach?” Judge Garcia asked, prompting Mr. Sauer to repeat his argument.
Court Needs Applicable Test
A judge pointed to the conditions of release President Trump signed, which the district court had found was not enough when it issued the gag order. The conditions prevent President Trump from speaking to potential witnesses himself, and the judge asked Mr. Sauer whether a phone call from President Trump to a witness, which was political in nature, would pass or fail his test. He said it would clearly violate the conditions.
“If he gets up on stage, or social media, and says that exact same thing, ‘Ms. X, a public figure, is being bothered by this prosecutor. People who are loyal, honest patriots don’t talk to the government,'” the judge said. “To be clear, this is a hypothetical question … does punishing that … violate the First Amendment?”
She suggested it was equivalent.
“Doesn’t that have to be your answer?” the judge said. “Clearly he has no entitlement to do publicly what is well established he could not do one-on-one to that witness.” She revisited this hypothetical several times.
Mr. Sauer said case rulings that prohibited trying the case in the court of public opinion had all been targeting potential influencing of the jury pool, which the district court had rejected as rationale for the gag order in this particular case.
One of the judges pointed to a different gag order on President Trump, which is being appealed in New York, which prohibits him from speaking about the presiding judge’s staff. She said that it seemed there was speech being deemed political and related to his campaign that would not have been political speech if not for the cases themselves. “Nothing about them would be campaign speech without a case.”
Mr. Sauer said President Trump has not made any comments on any court staffers in this case, but if it turns out later that there was a court staffer who was extremely biased, wouldn’t he be allowed to comment on it? The judge countered that the defendant could then file an emergency motion about the bias, and there is standard protection for this.
“I’ve been struggling to understand what your test captures,” one judge said. She later insisted that Mr. Sauer was giving “no weight at all” to balancing the interest of the court in protecting a fair trial.
“The showing would have to be extraordinarily compelling, at the very least,” Mr. Sauer said.
Another hypothetical was presented: if, the night before former Vice President Mike Pence is to testify, President Trump makes a social media post about him, is that communicating with the witness in violation of his release conditions? Could the district court prohibit this?
Mr. Sauer said likely not.
The clarity of the word “target” was also debated during the hearing. The panel of judges said, after reviewing transcripts of the district court hearing, that it appeared clear because the judge went over several social media posts and indicted which would be allowed and which would not be allowed.
Mr. Sauer said as legal counsel he did not think it was clear enough to advise his client; pointing to a post that criticized a potential witness that the prosecutors said was permissible because it hadn’t been inflammatory, and another post where he alluded to the special counsel but without using his name.
Judges then questioned the prosecution’s attorney on what they took “targeting” to mean, which they said means singling out people negatively. The panel pointed out that U.S. District Judge Tanya Chutkan had clarified she meant to omit praise as well in her use of the word “target.”
“So what’s not fair game? He can comment, and he can comment very critically?” one judge asked, and the attorney suggested that it was anything that would “trigger excessive zeal.”
The prosecutors seemed to go back to the rationale for the original gag order proposal, in which they wanted to prohibit “inflammatory” statements. One of the judges brought up President Trump’s social media posts about former U.S. Chairman of the Joint Chiefs of Staff Mark Milley, which was made a day after Mr. Milley, a retired general, gave an interview about his book.
A critical post about him from before the indictment was permissible, as well as posts afterwards, but the comment that he should be put to “death” was not permissible, the attorney answered.
One judge pushed back on the reasoning, explaining that the purpose of a protective order is to protect the integrity of the proceeding, not to shield public figures from criticism. “Their testimony would be affected? That’s very hard for me to imagine.”
The attorney said the test isn’t whether a targeted witness would change their testimony.
Another judge suggested that it was the appearance that these figures could be influenced that needs to be protected.
Prosecutors argued that the order was not vague or unclear, demonstrated by the fact that posts while the gag order was in effect showed that President Trump clearly understood what speech was prohibited and had adhered to the order.
Judges asked about the provision against statements on staff families, and to what degree threats may deter staffers’ work, and drew the conclusion that the statements prohibited had less to do with safeguarding impartiality than preventing threats.
They also asked how, in the age of social media, the attorneys could determine which threats could be tied back to President Trump. One judge asked prosecutors how they were balancing the order for the First Amendment, and how “inflammatory posts” about the special counsel would constitute a threat.
“If there are actual threats that’s a crime and that can be dealt with,” the judge said.
The attorney argued it was a narrow order that still allows the special counsel to the criticized, but the judge asked how that was possible when the order prohibited statements that “target” the prosecution.
“I think the special counsel himself is a somewhat unique case because he is very much an individual trial participant and represents the institutional interest of the Department of Justice, so for him we would concede that merely referencing him or criticizing him … is a violation of the [order],” the attorney said.
He suggested the former president would have to file a motion before making such statements, which the judge said didn’t much balance the First Amendment.
“Surely he has a thick enough skin,” another judge said of special counsel Jack Smith, should President Trump refer to him by name.
The panel also pushed back on the idea that this order could prevent the case from being tried in the court of public opinion, when it is already so highly publicized. One judge said she took the order to be in the interest of protecting staffers from threats and potential witnesses from praise that may influence their testimonies.
The attorney said that was the primary reasoning for the gag order.
The judges also pushed back on the idea that aside from Mr. Smith, the other prosecutors could not be named, as they are also public figures. “Why can’t he say A, B, and C, whoever is on the prosecutorial team, are biased?” the judge asked.
A judge asked whether there could be a technological solution to prevent the release of addresses of the parties that need protecting instead. The attorney said he did not know off any offhand.
The panel presented another hypothetical, based on President Trump’s post calling former Attorney General Bill Barr a “slimy liar.” Was “slimy” permitted? Or was “liar” the issue?
The attorney argued that the former president could not publicly call any potential witness a liar, even to defend himself in the public arena after accusations a potential witness might similarly make in the public arena, because their position is that President Trump should not be able to attack the witnesses’ credibility.
“We’ve got to use a careful scalpel here,” one judge said. The panel also pointed out that one of the Supreme Court cases the prosecutors are relying on gags attorneys, not the defendant, and that courts have historically equipped criminal defendants to “vigorously” defend themselves against the government.