How does the law balance a defendant’s freedom of speech with the system’s ability to carry out a fair trial and protect witnesses?
Gag orders for a criminal defendant are not a novel and unaddressed aspect of law — but enforcing them for a defendant who is also running for President of the United States and is likely to be one of the two major party nominees is a unique situation.
That’s especially true when many potential witnesses in the case are public figures, some in political positions themselves.
By the end of the month, three judges on the United States Court of Appeals for the DC Circuit will have to draw some potentially precedent-setting conclusions.
Donald Trump’s team argued that his speech is political, and even though he’s repeatedly claimed that the timing of his criminal indictments is evidence that they’re politically motivated, his attorneys argued that this would have been the case even if he’d been charged before he announced his 2024 campaign.
His attorney D. John Sauer argued that, even if there is evidence of a pattern in which Trump’s speech prompts threats and violence from his fans, that evidence is “three years old,” and shouldn’t be considered relevant.
Sauer dodged hypotheticals from the judges, who wanted to know exactly where he would draw the line — if Trump isn’t allowed, for instance, to call a witness and say not to testify, can he instead say on social media or at a rally, “Hey witness x…don’t cooperate?”
Though judges seemed to grow exasperated with Sauer, they were not any gentler with the prosecution.
Assistant special counsel Cecil Vandevender argued for the DOJ, and judges pressed him on exact examples of what speech or conduct would be a violation of the gag order.
They warned that arguing prosecutors and other high-profile figures couldn’t handle some inflammatory rhetoric “seems to contradict” the precedent set by the Supreme Court.
There was debate between Vandevender and judges over whether the difference between “targeting” and commenting on the proceedings is as simple as naming names, and whether the same rhetoric would be permissible without a name, but a violation if it named, for instance, a specific prosecutor.
The hearing also took a closer look at the social media post Trump made attacking General Mark Milley. There was a debate about whether the post — which suggested death would be an appropriate punishment for Milley’s actions (assuring a counterpart in China that the U.S. was stable and not on the verge of an attack against the country) — could be clearly defined as relating to the criminal case, or if it would be protected as political speech unrelated to the court proceedings as a response to Milley’s newly-released book.
Also at issue: would the post about Milley be permissible if the suggestion that he should be put to death was left out of it, as Judge Tanya Chutkan had previously indicated?
However, when the prosecution argued that Trump should not be allowed to, for instance, make a public declaration that a given witness (former Attorney General Bill Barr was named as an example) is “a liar,” judges were not convinced.
The prosecution argued that there’s a marked and relevant difference between calling a statement from a witness a lie and calling that witness a liar, but the justices questioned whether it would violate Trump’s rights to prevent him from merely opining on the credibility of a witness.
The court reconvenes on November 30th to issue a ruling.
Monday’s hearing can be streamed below.
Steph Bazzle covers politics and theocracy, always aiming for a world free from extremism and authoritarianism. Follow Steph on Twitter @imjustasteph.