Former President Donald Trump’s attorneys told the U.S. Court of Appeals for the D.C. Circuit on Nov. 17 that the Biden administration made poor legal arguments in attempting to a lower court’s gag order.
The filing comes just before a three-judge panel is set to hear oral argument on the order on Nov. 20. President Trump has repeatedly challenged the gag order on First Amendment grounds the Justice Department and D.C. District Court Judge Tanya Chutkan maintained that, as a defendant, he didn’t enjoy an unrestricted right to free speech. They argue that President Trump’s rhetoric has the potential to prompt backlash or harassment, although President’s Trump’s attorneys have alleged this line of justification lacks evidence and is impermissible under the First Amendment.
The order has been temporarily lifted pending the appellate court’s decision. A New York judge also recently lifted Justice Arthur Engoron’s gag order in President Trump’s civil fraud trial—a move the defense noted in their Nov. 17 brief.
Special Counsel Jack Smith’s team and President Trump’s attorneys have largely disagreed over how prior court precedent applies to the D.C. case. President Trump’s team argued that federal court decisions have clarified that core to the First Amendment is the type of political speech their client wants to pursue. Moreover, Trump’s attorneys argue, the gag order violates the First Amendment rights of voters who want to hear from him.
Judge Chutkan’s order doesn’t prevent President Trump from generally attacking the Biden administration, its policies, or alleging that its prosecution is political. It does, however, contain what the defense says is a vague prohibition on President Trump “targeting” potential witnesses, like former Attorney General William Barr, during his campaign.
The Nov. 17 filing represents the latest in a series each side has submitted on the issue, and contained some sharply worded attacks on both the special counsel’s arguments and Judge Chutkan’s decision.
“The prosecution contends that silencing a political candidate with over 100 million followers imposes an ‘equal’ injury as silencing a single speaker—an argument that would flunk first-grade math,” read the brief from President Trump’s attorneys.
That portion appeared to refer to the special counsel’s arguments about how the order applied to President Trump and his followers.
The special counsel’s Nov. 14 brief argued that the gag order “on its face applies equally to both parties, and prohibits them from targeting various individuals, including ‘defense counsel or their staff.’”
It also said that “the public’s right to receive [President Trump’s] speech—while certainly legitimate—is, as the defendant notes ... ‘equal’ and ’reciprocal' to his own.”
Judge Chutkan Trying to ‘Micromanage’ Trump’s Speech
The defense’s Nov. 17 brief opens by accusing Judge Chutkan of trying to micromanage President Trump’s speech.“The Gag Order installs a single federal judge as a barrier between the leading candidate for President, President Donald J. Trump, and every American across the country,” it reads.
“The district court had no business inserting itself into the Presidential election, just weeks before the Iowa caucuses. 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.”
It’s unclear, for example, how exactly President Trump might go about publicly responding to a witness like former Vice President Mike Pence when his statements are leveraged by President Biden in the election cycle.
Legal experts have conflicted over the gag order. Some told The Epoch Times that the courts enjoy broad discretion in limiting defendants’ speech. Meanwhile, some have highlighted the unprecedented nature of the case and indicated that Judge Chutkan went too far in how she structured her order.
In reinstating her order on Oct. 29, Judge Chutkan rejected the idea that her order was too vague or created an unconstitutional prior restraint on President Trump’s speech. Instead, she said, the hearing on Oct. 16 and the text of the original order provide enough clarification of who and what it covered.
In a Nov. 14 filing to the appeals court, the special counsel reiterated Judge Chutkan’s concerns about him the former president spurring violence or harassment.
“As the district court explained ... the defendant does not need to explicitly incite threats or violence in his public statements, because he well knows that, by publicly targeting perceived adversaries with inflammatory language, he can maintain a patina of plausible deniability while ensuring the desired results,” read the Nov. 14 filing.
It added: “What matters for present purposes is that everyone—the defendant, his followers, and the people targeted—are aware of the dynamic, which creates a ’significant and immediate risk' of intimidation, threats, and harassment of those involved in the defendant’s trial and thus poses and intolerable risk of material prejudice to the proceedings.”
