Appeals Court Suggests It May Narrow Trump Gag Order in Election Case

Former President Donald Trump arrives at Trump Tower the day after FBI agents raided his Mar-a-Lago Palm Beach home, in New York City, on Aug. 9, 2022. David 'Dee' Delgado/Reuters

Several members of the United States Court of Appeals for the D.C. Circuit suggested they might narrow a gag order that was imposed on former President Donald Trump in his election case, coming weeks after a lower court judge imposed the ruling.

In mid-October, U.S. District Court Judge Tanya Chutkan ruled that the former president cannot publicly comment on court staff, prosecutors, or witnesses. The former president, who polls show is the leading GOP presidential candidate, appealed her order, while federal prosecutors have argued that the order should be upheld.

Earlier this month, the appeals court temporarily held Judge Chutkan’s ruling while it heard arguments. During those arguments on Monday, several panel members made public statements suggesting they would at least reduce her earlier ruling.

“There’s a balance that has to be undertaken here, and it’s a very difficult balance,” stated Judge Patricia A. Millett during Monday’s hearing, according to the Washington Post. “We’ve got to use a careful scalpel here and not step into really sort of skewing the political arena, don’t we?”

Later, the judge said the judges would have to weigh the former president’s First Amendment rights against what he described as maintaining the trial’s integrity.

“Labeling it core political speech begs the question of whether it is in fact political speech or whether it is political speech aimed at derailing or corrupting the criminal justice process,” Judge Millett said, according to USA Today. “We have to balance.”

She also expressed concerns about whether a rival presidential candidate invited a potential Trump trial witness to the campaign stage to attack the former president. He suggested that President Trump should have the capacity to respond, which would be barred under Judge Chutkan’s order.  “You can’t call anyone a liar?” Judge Millet asked.

“He has to speak ‘Miss Manners’ while everyone else is throwing targets at him?” the judge also said during the hearing, reported Politico. “It would be really hard in a debate when everyone else is going at you full bore. Your attorneys would have to have scripted little things you can say.”

Another member of the appeals court panel, Judge Nina Pillard, suggested that the trial judge’s order goes too far because it prevents the former president from making critical remarks about people who are public figures and who can be witnesses in his case, according to the report.

She also suggested that individuals who could be called as witnesses, such as former Vice President Mike Pence, former Joint Chiefs of Staff Mark Milley, or former Attorney General Bill Barr, would change their testimony based on the former president’s comments.

“I would assume that their testimony would not be affected,” Judge Pillard said.

The judge also suggested that the language used in Judge Chutkan’s order was vague, taking issue with the term “targeting.” She said, “‘Targeting’ does raise a little bit of unclarity.”

At one point, President Trump’s counsel suggested to the panel that a lone judge—in this case, Judge Chutkan—is essentially standing between the former president and his national audience.

“The district court had no business inserting itself into the Presidential election, just weeks before the Iowa caucuses,” Mr. Sauer wrote in court papers. “The First Amendment does not permit the district court to micromanage President Trump’s core political speech, nor to dictate what speech is sufficiently ‘general and what speech is too ’targeted’ for the court’s liking.”

He also argued that there is “no evidence at all” that President Trump’s public comments about special counsel Jack Smith, the judge’s staff, or possible witnesses—including erstwhile 2024 GOP candidate Mike Pence—has led to any threats or harassment.

“There is no evidence at all of threats and harassment in this case,” he said, reported USA Today.

Another member of the panel, Judge Bradley Garcia, appeared to suggest that a gag order should be imposed because the political atmosphere “was very tense” leading up to the 2020 election.

“As trial approaches, the atmosphere is going to be increasingly tense,“ the judge 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?”

But the Trump attorney said the “evidence we have now completely counteracts that inference because it is undisputed that President Trump has been posting about this case almost incessantly since the day it was filed, and they haven’t come forward with a single threat that’s even arguably inspired by any evidence in his social media posts.”

Federal prosecutor Cecil VanDevender alleged that President Trump had displayed a “pattern” that goes back years in which he targets his opponents, who then become “subject to harassment, threats, and intimidation,” the Post reported. In arguing for the gag order to be reinstated, Mr. VanDevender said the former president is trying to allegedly undermine the judicial system and his own trial via “inflammatory attacks” against witnesses and others.

Mr. VanDevender also said Monday that Mr. Smith, the special counsel, did not want to be personally protected from President Trump’s public criticism. The former president, on social media, has often described the special counsel as “deranged” and a “Trump-hating prosecutor.”