Former President Donald Trump’s defense lawyer faced tough grilling Monday from appeals court judges over a proposed gag order in his federal election interference case.
Trump’s team urged the panel to revoke District Court Judge Tanya Chutkan’s gag order barring Trump from targeting witnesses in the case charging him with plotting to overturn his loss in the 2020 presidential election.
The defense echoed Trump’s complaints that the gag order violates his First Amendment right to speak out about the case, which he considers a partisan witch hunt designed to prevent him from winning a return to the White House in 2024.
“The order is unprecedented and it sets a terrible precedent for future restrictions on core political speech,” Trump attorney John Sauer told the three-judge panel during the hearing that went on for more than two hours, much longer than expected.
Smith’s team countered that the restrictions are needed to prevent Trump from intimidating people who may be called to testify against him at the trial, which is set to start March 4.
The panel of Washington, D.C. Circuit Court judges appeared skeptical of Sauer’s arguments that the gag order was unconstitutional or had been entered without sufficient cause.
Judge Brad Garcia pressed Sauer to explain why the court can’t take steps now to defend the integrity of the case before threats against those involved get even worse.
“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?” he asked.
Other judges pointed out that defendants in criminal trials are often barred from publicly discussing aspects of their cases to protect the jury pool and preempt witness tampering.
They also asked some pointed questions of a prosecutor who defended the gag order.
“Doesn’t the First Amendment protect … inflammatory language?” Judge Patricia Millett asked. “Your position doesn’t seem to give much balance at all to the First Amendment’s vigorous protection of political speech.”
The gag order is one of several issues being argued ahead of the landmark trial, which is likely to be the first of several legal tests Trump will face at the same time as he runs for president.
Monday’s hearing will help set parameters on what Trump can and cannot say about potential witnesses against him like former U.S. Attorney General Bill Barr, ex-Vice President Mike Pence and onetime White House Chief of Staff Mark Meadows.
The former president also regularly rants about Smith, whom he accuses of being a “vicious” and “deranged” tool of Biden, and even his wife and family.
Chutkan imposed the order but lifted it at Trump’s request to give him time to prove why his words should not be restricted.
She put it back into effect after Trump used the pause to post social media comments that prosecutors said were designed to bully Meadows against cooperating with prosecutors, a no-no for defendants in any criminal case.
The circuit court lifted the edict again as it considers Trump’s appeal, a common practice.
The four-count indictment in Washington is one of four criminal cases including 91 felony counts faced by Trump even as he seeks to reclaim the White House.
He’s been charged by Smith’s team with mishandling classified documents that he took with him to his Mar-a-Lago resort home. That case is due to start in May although it could be delayed.
He’s facing a Georgia state RICO case that charges him and more than a dozen co-defendants with plotting to steal the 2020 presidential election in that state and elsewhere. Fulton County District Attorney Fani Willis has asked a judge to set an August court date in that case, which would effectively overlap with the presidential campaign.
Trump has been charged in a Manhattan case tied to hush money payments made to porn star Stormy Daniels.
Trump has pleaded not guilty in all the cases and falsely says Biden has ordered him prosecuted to keep him from winning the forthcoming election.