Judges sparred with former President Donald Trump’s attorney on Monday during a heated hearing considering the appeal of his gag order.
The order, which District Court Judge Tanya Chutkan issued in October, blocks Trump from making public statements targeting Special Counsel Jack Smith or his staff, the defense counsel or their staff, along with court staff and “any reasonably foreseeable witness or the substance of their testimony.” Obama-appointed Judges Patricia Millett and Cornelia Pillard and Biden-appointed Judge Bradley Garcia grilled Trump lawyer John Sauer for over an hour — far above the allotted 20 minutes — trying to tease out what evidence would be required for the district court to constitutionally issue a gag order.
“I really want an answer,” Millett interrupted after Sauer objected to one of her hypotheticals.
Sauer argued that the order is “unprecedented” and impedes on Trump’s “core political speech” during a presidential campaign. The appeals court temporarily paused the district court’s order early November pending Trump’s appeal.
During the hearing, the judges continually spoke over Sauer, growing frustrated with his hesitancy to directly answer their questions and concerned that his standard would not allow the court to protect the integrity of the trial before harm had actually occurred.
“It seems at times your position would be that the district court’s hands are tied until we actually know there has already been harm to the integrity of the trial, for example, that a witness has been intimidated,” Garcia said.
Clip from appellate court hearing on Trump gag order.
Listen to Judge Millett (Obama) yell at Trump’s lawyer bc he won’t answer a loaded hypothetical question: pic.twitter.com/MVW5noloPf
— Julie Kelly
(@julie_kelly2) November 20, 2023
The panel also questioned attorney Cecil VanDevender, arguing on behalf of Special Counsel Jack Smith’s office, to seek clarity on what speech allowed under the current order. They raised concerns about the order’s “troubling” lack of free speech protections.
“[Your position] doesn’t seem to give much balance at all to the First Amendment’s vigorous protection of political speech,” one judge told VanDevender.
“There’a a balance that has to be undertaken here. We certainly want to make sure that the criminal trial process and its integrity and its truth finding function are protected,” Millett said. “But we’ve got to use a careful scalpel here and not step into … skewing the political arena, don’t we?”
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