A federal appeals court indicated Monday that it would likely overturn at least a portion of the gag order imposed on former President Donald Trump, Fox News reported. U.S. District Judge Tanya Chutkan imposed the order in Trump's Washington, D.C., case alleging election interference in the 2020 presidential race.
The three-judge panel has not officially ruled on whether to uphold the gag order. However, it's expected that the court will not let it stand in its entirety based on the proceedings.
Arguments from both sides lasted two and a half hours while the panel listened and questioned with healthy skepticism. The order was first imposed on the former president on Oct. 17 in a case about his supposed involvement in the plot to overturn the 2020 election.
He was ordered not to speak about the witnesses, staffers in the court, or Special Counsel Jack Smith and his staff. That order was blocked pending an appeal on Oct. 29 but later reinstated.
The most recent legal movement involved Monday's arguments. Smith's attorney, Cecil VanDevender, claimed it was necessary to impose limits on what Trump could say about the case because of possible threats and witness intimidation.
However, Trump's attorney, John Sauer, petitioned the court to revoke the order altogether. Trump believes that the gag order is a "categorically unprecedented" violation of his First Amendment rights, CNN reported.
Now it will be up to the judges, two of whom were appointed by former President Barack Obama and one by President Joe Biden. "We certainly want to make sure that the criminal trial process and its integrity and its truth-finding function are protected, but we ought to use a careful scalpel here and not step into really sort of skewing the political arena," Obama appointed Circuit Judge Patricia Millett said.
The judge told Sauer that the issue is more nuanced than free speech rights. Millet pointed out that the order is supposed to limit speech geared toward skewing the legal proceedings rather than preventing Trump from making claims in his campaign.
"First of all, we’re not shutting down everyone who speaks. This is only affecting the speech temporarily during a criminal trial process by someone who has been indicted as a felon," Millet said.
"No one here is threatening the First Amendment broadly," she added. Sauer explained that it limited "core political speech" for Trump and his 2024 presidential campaign.
"Labeling it ‘core political speech’ begs the question of whether it is, in fact, political speech or whether it is political speech aimed at derailing or corrupting the criminal justice process," Millet snapped back at Sauer. "You can’t simply label it that and conclude your balancing tests that way. We have to balance."
Judge Cornelia Pillard, another Obama appointee, did concede that it wouldn't hurt to allow Trump to speak about Smith, however. "Surely he has a thick enough skin," Pillard said, indicating that Trump could at least defend himself when it came to public figures like the special counsel.
The judges kept pushing back on the free speech claims on the grounds that allowing Trump to speak out about injustices in the courtroom would translate to threats against the people involved. However, as Sauer pointed out, there is scant evidence to back up that claim.
Trump is a political candidate and should have a right to defend himself in the public sphere against these legal proceedings. People who might take his criticisms as a call to arms are the ones committing a crime and thus should have their rights limited, not Trump.
