Audio of a hostile exchange between the federal appeals court and former President Donald Trump’s lawyers hinted Monday that the court will reinstate restrictions to former Trump’s speech heading into the 2024 Republican presidential primary — and perhaps throughout the 2024 general election.
The audio shows the judge and Trump’s lawyer, D. John Sauer, arguing over whether Trump can post about certain political opponents on social media.
The judges also struggle with how to craft a legal gag order that doesn’t prevent Trump from defending himself on the campaign trail.
The three judges on the panel asked skeptical and at times aggressive questions of attorneys while weighing whether to put back in place an order from a trial judge that barred Trump from comments against prosecutors, potential witnesses, and court staff.
Trump has called his legal troubles politically motivated, and said they were “election interference” because they come in the midst of his campaign to retake the Oval Office from President Joe Biden.
The judges raised a litany of hypothetical scenarios that could arise in the months ahead as they considered how to fashion a balance between an order that doesn’t violate Trump’s First Amendment rights.
But the judges hinted that they would reinstate a gag order to protect “the criminal trial process and its integrity and its truth finding function.”
Take a listen to one exchange between Judge Patricia Millett and Sauer that critics panned as evidence of bias —
— Julie Kelly 🇺🇸 (@julie_kelly2) November 20, 2023
No matter the outcome, the stakes are high given the massive public platform Trump holds on social media and the campaign trail, and the limited legal precedent for restricting free speech of political candidates — let alone a leading contender for the White House.
Monday’s arguments spanned nearly two-and-a-half hours, with Sauer fielding the majority of questions as he pressed his case that the gag order was overly vague and an unconstitutional muzzling.
“The order is unprecedented, and it sets a terrible precedent for future restrictions on core political speech,” Sauer said. He described it as a “heckler’s veto,” unfairly relying on the theory that Trump’s speech might someday inspire other people to harass or intimidate his targets.
“They can’t draw a causal line from any social media post to threat or harassment when we have wall-to-wall media coverage of this case,” Sauer told the court.
Those points were greeted coolly by the court.
Judge Brad Garcia pressed Sauer to explain why the court shouldn’t take steps before Trump made hypothetical statements against potential witnesses or others.
“This is predictably going to intensify as well as the threats, so why isn’t the district court justified in taking a more proactive measure and not waiting for more and more threats to occur and stepping in to protect the integrity of the trial?” Garcia said.
Sauer contended that prosecutors could not prove a direct line between Trump’s rhetoric and actual harm, but VanDevender pointed out that a Texas woman stands charged with making a death threat against the judge in the Trump case, Tanya Chutkan, just one day after Trump in August posted on social media: “If you go after me, I’m coming after you!”
Prosecutors cited that episode in its original gag order request, saying Trump’s posts had “already influenced the public.”
Another judge hearing the arguments, Cornelia Pillard, sharply questioned Sauer over whether he believed any restrictions on Trump’s speech were allowed, telling him: “I don’t hear you giving any weight at all to the interest in a fair trial.”
Judge Millett recoiled at Sauer’s argument that Trump was merely engaged in core political speech.
“Labeling it core political speech begs the question if it’s political speech or speech aimed at derailing the criminal process,” she said.
But the judges also repeatedly wondered where to strike a balance, raising the prospect that the gag order could ultimately be narrowed. Millett at one point expressed incredulity at the idea that Trump would not be able to respond to criticism by rival candidates in a debate.
“He has to speak Miss Manners while everyone else is throwing targets at him?” she asked.
The order has had a whirlwind trajectory through the courts since Chutkan imposed it in response to a request from prosecutors, who cited among other comments Trump’s repeated disparagement of Smith as “deranged.”
The judge lifted it days after entering it, giving Trump’s lawyers time to argue that the leading Republican candidate’s words should not be restricted. Chutkan put it back in place quickly after prosecutors complained about Trump’s social media usage.
The, an appeals court again lifted the gag order as it considered Trump’s appeal.
Pillard and Millett are appointees of former President Barack Obama. Garcia joined the bench this year after being nominated by President Joe Biden. Obama and Biden are Democrats.
The four-count indictment against Trump in Washington is one of four criminal cases he faces as he seeks to reclaim the White House in 2024. The case is set for trial next March 4.
He’s been charged in Florida, also by Smith’s team, with illegally keeping classified documents at his Mar-a-Lago estate in Palm Beach, Florida. He’s also been charged in state court in New York in connection with payments allegedly connected to an extramarital affair, and in Georgia over his claims of fraud in the 2020 presidential election in that state.
Trump has denied any wrongdoing.
The entire audio of the Trump gag order hearing was shared online and is available here —
The Horn editorial team and the Associated Press contributed to this article