WASHINGTON — Lawyers for Donald Trump and the Justice Department were squaring off Monday in a federal appeals court, where the former president’s lawyers are arguing that his constitutional rights have been violated by a gag order barring him from disparaging witnesses and prosecutors associated with the election interference case.
The two sides began presenting their arguments in Washington before a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, shortly after 9:30 a.m. ET, with special counsel Jack Smith, who made the decision to charge Trump, sitting in the front row. The hearing’s expected to last about an hour.
The judges — 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. The judges will not issue a ruling at the hearing, but their questioning could indicate which way they’re leaning.
Trump contends that as a presidential candidate, his speech should not be impeded in any way.
“The Gag Order appoints an unelected federal judge to censor what the leading candidate for President of the United States may 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 “speedily reversed.”
Prosecutors from special counsel Jack Smith’s office argue the order is necessary for a fair trial, and that Trump’s social media posts and public comments about prospective witnesses and lawyers in the case led to risks of harassment and witness intimidation.
U.S. District Judge Tanya Chutkan, who is overseeing the case, agreed with prosecutors in an order last month.
“Undisputed testimony cited by the government demonstrates that when Defendant has publicly attacked individuals, including on matters related to this case, those individuals are consequently threatened and harassed,” Chutkan wrote in an Oct. 17 ruling that cited Trump’s comments about how some people involved in the case “are liars, or ‘thugs,’ or deserve death.”
“The court finds that such statements pose a significant and immediate risk that (1) witnesses will be intimidated or otherwise unduly influenced by the prospect of being themselves targeted for harassment or threats; and (2) attorneys, public servants, and other court staff will themselves become targets for threats and harassment,” the judge wrote.
Her gag order prohibited Trump “from making any public statements, or directing others to make any public statements” that target likely witnesses and the substance of their testimony, as well as the special counsel, his staff and employees of the court.
But it also made some exceptions by explicitly allowing Trump to continue criticizing the Biden administration and the Department of Justice in connection with the case, to argue that the case against him is politically motivated, and to assert his innocence. Chutkan also said she would not prohibit “statements criticizing the campaign platforms or policies of Defendant’s current political rivals, such as former Vice President Pence,” a then-presidential candidate who’s likely to be called as a witness for the prosecution when the case goes to trial in March.
Trump’s attorneys appealed the order, arguing that Chutkan was acting as “a barrier between the leading candidate for President, President Donald J. Trump, and every American across the country,” and that the court has “no business inserting itself into the Presidential election.”
“President Trump’s speech about this case is quintessential campaign speech,” and the “First Amendment does not permit the district court to micromanage President Trump’s core political speech,” his lawyers argued.
Prosecutors countered that Trump was seeking special treatment and urged the appeals court not to give it to him.
In their filing, government attorneys said Trump maintains “that it is not enough for him to be able to defend himself in court, publicly profess 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 of targeting witnesses and public servants like 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 decline the defendant’s request to fashion a special rule solely for him,” they added.
This is not Trump’s first time being hit with a gag order, nor is it the first time he’s 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 matter can be considered by a full panel of judges later this month.
Daniel Barnes reported from Washington and Dareh Gregorian from New York.
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