WASHINGTON (CN) — A D.C. Circuit panel on Monday weighed the constitutionality of a now-paused gag order imposed in former President Donald Trump’s election subversion case in Washington, attempting to find a balance between his First Amendment rights and the administration of justice in the case.
The panel, made up of U.S. Circuit Judges Cornelia Pillard, Patricia Millett and Bradley Garcia — all appointed by Democratic presidents — doubted the arguments made by Trump’s lawyers that his statements are “core political speech” and should not be limited by an order, while taking issue with the government’s seemingly ill-defined boundaries as to what Trump can and cannot say.
Monday’s arguments come after the order, originally imposed by U.S. District Judge Tanya Chutkan on Oct. 16, has since been stayed, reimposed and stayed again as Trump has appealed. He argues the gag order violates his First Amendment rights even while continuing to make the inflammatory statements that led to the order.
Special counsel Jack Smith has urged both Chutkan and the D.C. Circuit to reimpose the order, warning that his practice of targeting perceived opponents — including court personnel like Chutkan and New York Judge Arthur Engoron’s court clerk in his Manhattan civil fraud trial — will lead to violence.
Trump’s appellate attorney, John Sauer of firm James Otis, argued the order effectively makes Chutkan, a Barack Obama appointee, a “filter” with the power to determine what the U.S. electorate can hear from the current GOP front-runner throughout the campaign. Sauer also said the order sets a bad precedent.
He argued the order is based on a hypothetical speculation that Trump’s speech will lead to threats against court personnel, prosecutors and potential witnesses and does not rise to a clear and present danger that would warrant such a restriction of First Amendment rights.
Millett, an Obama appointee, pressed Sauer to provide a balancing test the panel could use that would allow the lower court to protect its proceedings before a threat materializes without overstepping Trump’s free speech.
Sauer seemed unable to offer one, instead maintaining that Trump should have “absolute freedom” to say what he wishes because of its political nature.
Since the D.C. Circuit placed an emergency freeze on Nov. 3 pending a second appeal, Trump called his political opponents “vermin” in a Veterans Day speech. He also used the speech to attack Judge Engoron and Smith, blaming them for his legal woes and saying they pose a more “sinister, dangerous and grave threat” than those from outside forces, exactly the type of statement that would violate the gag order.
The statements were not mentioned during Monday’s proceedings, but the panel instead made repeated references to Trump calling for the apparent execution of Mark Milley, the recently retired chairman of the Joint Chiefs of Staff, for communications with Chinese officials in the waning months of his presidency.
The panel appeared to adopt arguments made by Smith that such statements against public figures are more problematic in how they intimidate non-public figures who may testify — like poll workers in swing states where Trump tried to wrangle a slew of false electors to vote in his favor — rather than any chilling effect it may have on witnesses like Milley.
Cecil VanDevender, member of the special counsel’s office, did not escape the panel’s scrutiny either, fielding questions as to where the exact boundaries of the gag order should fall and what counts as “targeting.”
Pillard, another Obama appointee, noted that clearly any comments that trigger “loyalist zeal” — like Trump’s Aug. 4 Truth Social post “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” — and spur his supporters to make threats against anyone he names in a post would violate the order.
Millett pushed the question further, asking what limits the order would place on Trump’s speech on the debate stage, where he is likely to be pressed from both his opponents and the moderators about his criminal cases. She specifically asked whether Trump may call his detractors who may testify in the case liars.
VanDevender said no, as that would count as him attacking the credibility of potential witnesses and an attempt to try the case in public.
Millett then asked whether Trump could call them “untruth speakers,” and was seemingly taken aback when VanDevender maintained his position. He clarified that Trump could disagree with their statements and call those untrue.
VanDevender, with Smith sitting just behind him, added that the order seeks to prevent Trump from singling out specific members of the prosecution, court staff and potential witnesses, referencing Trump’s targeted attacks identifying Smith’s wife to paint him as biased.
Pillard acknowledged the concerns such personal posts raised, but took issue with placing blanket protections on members of the special counsel’s team, whose names are a matter of public record and are paid by the taxpayers as federal prosecutors.
Making eye contact with Smith, she joked that such an experienced prosecutor as himself must have “thick skin,” to which Smith subtly nodded.
The panel is likely to resolve the gag order issue in December or early January.
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