WASHINGTON – Lawyers for Donald Trump and the Department of Justice were square Monday in a federal appeals court, where the former president’s lawyers argue that his constitutional rights have been violated by a gag order that prevents him from impeaching witnesses and prosecutors in the election meddling case.
The two sides began presenting their arguments in Washington to a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit shortly after 1 p.m. 9:30 a.m. ET, with special counsel Jack Smith, who made the decision to charge Trump, sitting in the front row. The hearing is expected to last about an hour.
Trump’s lawyer D. John Sauer argued that it would set a “terrible precedent” for “restrictions on core political speech.”
The justices — two nominated by former President Barack Obama, one by President Joe Biden — issued an order this month pausing the gag order until they could hear arguments in the appeal. Pressed by one about prosecutors’ argument that Trump’s public comments about witnesses and officials have led to individuals being “threatened and harassed,” Sauer said, “This is all based on evidence that is three years old.” He said Trump has commented on the case “incessantly” and there is no evidence that anyone in the election meddling case has been threatened.
Asked if there was a need to balance Trump’s political speech with concerns about threats, Sauer said his client should have the right to “absolute freedom” to speak his mind.
Trump has similarly argued that his speech as a presidential candidate should not be obstructed in any way.
“The Gag Order appoints an unelected federal judge to censor what the leading candidate for the presidency of the United States has to say to all Americans,” Trump said in a statement Friday. “No court has ever upheld a gag order on core political speech at the height of a campaign,” he added, calling for the ruling to be “quickly reversed.”
Prosecutors from special counsel Jack Smith’s office argue that the order is necessary for a fair trial and that Trump’s social media posts and public comments about potential witnesses and attorneys in the case led to risks of witness harassment and intimidation.
U.S. District Judge Tanya Chutkan, who is overseeing the case, agreed with prosecutors in a ruling last month.
“Undisputed testimony cited by the government shows that when the defendant has publicly attacked individuals, including in matters related to this case, those individuals are consequently threatened and harassed,” Chutkan wrote in an Oct. 17 ruling, citing Trump’s comments about how some people got involved. in the case “are liars or ‘thugs’ or deserve death.”
“The Court finds that such statements present a substantial and imminent risk that (1) witnesses will be intimidated or otherwise unduly influenced by the prospect of being harassed or threatened themselves; and (2) attorneys, public officials and other court personnel will themselves become targets of threats and harassment,” the judge wrote.
Her gag order prohibited Trump from “making public statements or soliciting others to make public statements” targeting likely witnesses and the content of their testimony, as well as the special counsel, his staff and employees of the court.
But it also made some exceptions, explicitly allowing Trump to continue to criticize the Biden administration and the Justice Department in connection with the case, to argue that the case against him is politically motivated, and to maintain his innocence. Chutkan also said she would not prohibit “statements criticizing the campaign platforms or policies of the defendant’s current political rivals, such as former Vice President Pence,” a then-presidential candidate who is likely to be called as a prosecution witness when the case goes to trial in March .
Trump’s lawyers appealed the ruling, arguing that Chutkan acted as “a barrier between the leading candidate for president, President Donald J. Trump, and all Americans across the country” and that the court has “no business inserting itself into the presidential election .”
“President Trump’s speech on this matter is essential campaign speech,” and “the First Amendment does not permit the district court to micromanage President Trump’s core policy speech,” his lawyers argued.
Prosecutors countered that Trump was seeking special treatment and urged the appeals court not to grant it to him.
In their filing, government lawyers said Trump maintains “that it is not enough for him to be able to defend himself in court, publicly declare his innocence, criticize the presiding judge, characterize the prosecution as politically motivated, and criticize the platforms and policies of his political opponents. He must also be allowed to engage in a concerted campaign to target witnesses and public servants such as court staff and career prosecutors and even their families, with inflammatory language likely to result in harassment, intimidation and threats.”
“No other criminal defendant or defense attorney could credibly make such a claim, and the court should deny the defendant’s request to craft a special rule exclusively for him,” they added.
This is not the first time Trump has been hit with a gag order, nor is it the first time he has appealed one.
The New York judge presiding over Trump’s ongoing $250 million civil fraud trial imposed a gag order last month after Trump smeared the judge’s law clerk in a social media post. After an appeal, a state court temporarily lifted the gag order until the case can be heard by a full panel of judges later this month.
Daniel Barnes reported from Washington and Dareh Gregorian from New York.