A federal appeals court on Monday was skeptical of former President Donald Trump’s attempt to scrap a gag order in his election-subversion case but seemed willing to narrow down limits on what the ex-president can say, particularly in the heat of the 2024 campaign.
During oral arguments, a three-judge panel on the U.S. Court of Appeals for the D.C. Circuit explored what kind of rhetoric should be allowed or out of bounds under the gag order from U.S. District Judge Tanya Chutkan.
The order prohibits Mr. Trump and his lawyers from targeting special counsel Jack Smith, court personnel or witnesses in the run-up to trial on charges he conspired against the U.S. by trying to reverse the results of the 2020 election.
Mr. Trump, who frequently posts on social media and gives long speeches at campaign rallies, opposes the gag order. He says it’s an unprecedented attempt to limit his First Amendment right to speech while he campaigns for president ahead of a possible rematch with President Biden in 2024.
Judge Chutkan temporarily lifted her order while Mr. Trump challenged it in the higher courts.
Three Democrat-appointed judges — Obama appointees Patricia Millett and Cornelia Pillard and Biden appointee Brad Garcia — peppered lawyers with questions Monday about the legal standards in question and hypothetical examples of what would constitute an unacceptable threat.
For instance, the judges questioned whether Mr. Trump telling former Vice President Mike Pence he could “still do the right thing” — on the night before Mr. Pence testified — would amount to a violation.
An attorney for Mr. Trump, John Sauer, argued there had to be an imminent threat for a gag order to be imposed. He also said there was a lack of evidence that social media posts led directly to threats.
“The order is unprecedented and it sets a terrible precedent for future restrictions on core political speech,” Mr. Sauer said.
Yet Judge Garcia said there is a “past pattern” that shows when Mr. Trump speaks, threats tend to follow.
“We’re months out from the trial. This is predictably going to intensify,” Judge Garcia said.
He queried why the court should wait for danger, “rather than taking a reasonable action in advance.”
Judges also pointed to the case of a Texas woman who was charged with threatening Judge Chutkan the day after Mr. Trump posted a strongly worded message on his social media account.
Assistant special counsel Cecil Vandevender, arguing for the government, pointed to other testimony from people who received threats after Mr. Trump posted on social media.
“The district court correctly found that the defendant’s well-established practice of using his public platform to target his adversaries, including trial participants in this case, poses a significant and immediate risk to the fairness and integrity of these proceedings,” he said.
The judges pressed him, however, on the scope of an order restricting Mr. Trump, particularly when it comes to attacking Mr. Smith, who is the prominent face of criminal cases against Mr. Trump.
“It can’t be that he can’t mention Mr. Smith,” Judge Pillard said.
Judge Millett suggested it would be unfair to require Mr. Trump to be “Miss Manners” while everyone else is throwing darts at the ex-president.
• Tom Howell Jr. can be reached at thowell@washingtontimes.com.
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