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An appeals court hears arguments about Trump's gag order in Jan. 6 case

Lawyers for the former president and the special counsel team argued before a federal appeals court about the scope of a gag order lodged against him. The court gave no timetable for a ruling.

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Former President Donald Trump, shown here at a mixed martial arts event on Nov. 11, is asking to be freed from a gag order in an election interference case.
Former President Donald Trump, shown here at a mixed martial arts event on Nov. 11, is asking to be freed from a gag order in an election interference case. Frank Franklin II | AP
Updated November 20, 2023 at 12:13 PM ET

A federal appeals court is mulling whether to restrain the former president and current presidential candidate Donald Trump, who's asking the judges to free him from a gag order in his federal election interference case.

Trump's bombastic remarks about prosecutors and witnesses have pit his First Amendment rights against the need to protect next year's trial. Multiple courts are now grappling with Trump's remarks, a reflection of how a man who tested the limits of executive power in the White House is now testing the limits of the courts.

In more than two hours of arguments Monday before a three-judge panel in Washington, D.C., Trump attorney D. John Sauer asserted the limited gag order targets "core political speech" by a man running for the highest political office in the country. There is "near complete overlap" between Trump's defense to criminal charges and his ongoing political campaign, he added.

"The facts here don't come anywhere close to justifying this gag order," Sauer said.

But for special counsel Jack Smith and his prosecution team, the pattern is clear. Trump targets someone and his supporters respond with threats and intimidation.

Just days after the Justice Department unveiled a four-count felony indictment against Trump in Washington, D.C. over the summer, the former president posted, "If you go after me, I'm coming after you." Prosecutors said some of Trump's supporters took note and took action.

"The defendant does not need to explicitly incite threats or violence in his public statements, because he well knows that by publicly targeting perceived adversaries with inflammatory language, he can maintain a patina of plausible deniability while ensuring the desired results," assistant special counsel Cecil VanDevender wrote in a recent court filing.

He cited numerous examples in court papers: a woman in Texas has been charged with making threats against U.S. District Judge Tanya Chutkan, who's overseeing the trial in Washington, D.C. Another judge in New York presiding over a civil fraud case involving Trump has faced hundreds of threatening calls and letters. And after Trump shared what he said was former President Obama's address online this year, a heavily armed man showed up there.

That threat has not abated or "gone stale," VanDevender argued Monday to the appeals court. Trump has "incessantly" made inflammatory posts to a national audience, he said.

Appeals court Judge Bradley Garcia pointed out that as the political campaign intensifies next year, Trump's rhetoric may follow suit. "As this trial approaches," the judge said, "the atmosphere is going to be increasingly tense. Why does the district court have to wait and see" what Trump might post then, as opposed to taking action now to prevent witness intimidation or threats of violence?

Sauer, the attorney for Trump, said his language can be "rough and tumble" and "hard-hitting in many cases," but he said it's been directed at public figures, like prosecutors and former members of his administration.

"It's not really how I want my children to speak, but it's really not the question," Judge Patricia Millett said. At another point, the judge talked about the need to use a "careful scalpel" to avoid intruding into the political arena.

The three judges appeared to struggle with how to balance the heavy weight they afford to the First Amendment with the criminal trial process. The argument, initially scheduled to last 40 minutes, extended nearly two-and-a -half hours.

"With thanks to counsel for your helpful presentations and your patience with us, this case is submitted," said Judge Millett. She offered no timetable for the court's ruling.

The judge who will oversee next year's trial, Tanya Chutkan, has limited Trump from attacking prosecutors, likely witnesses, and court staff. The judge said Trump, as a criminal defendant, does not have limitless First Amendment rights. And she said he does not have "carte blanche to vilify and explicitly encourage violence against public servants."

Under the terms of her limited gag order, which has been paused pending the appeal, Trump is still free to make remarks about the Biden administration and the Justice Department; to assert his innocence; and to criticize his campaign rivals.

Trump's lawyers say the gag order is both vague and too broad, and the Justice Department has provided no evidence of any "actual or imminent threat" to the trial next year.

"The prosecutors and potential witnesses addressed by President Trump's speech are high-level government officials and public figures, many of whom routinely attack President Trump in their own public statements, media interviews, and books," Trump attorneys D. John Sauer and John Lauro wrote in court papers.

In a written statement Friday, the Trump campaign criticized the gag order and urged the higher court to reverse it: "The Gag Order appoints an unelected federal judge to censor what the leading candidate for President of the United States may say to all Americans, just weeks before the Iowa caucuses. No court has ever upheld a gag order on core political speech at the height of a campaign."

The gag order issue is the first big dispute to come before the appeals court but it won't be the last. Trump is trying to get the D.C. charges against him dismissed by arguing he enjoys sweeping presidential immunity, and that this case violates double jeopardy because he won an acquittal from the U.S. Senate in an impeachment proceeding related to the Capitol siege on Jan. 6, 2021.

If Judge Chutkan rules against him on either of those issues, Trump has signaled he would appeal to the D.C. Circuit and ultimately, the Supreme Court, which could delay his trial set for March 2024.

Copyright 2023 NPR. To see more, visit https://www.npr.org.

Transcript :

MICHEL MARTIN, HOST:

Today, a federal appeals court in Washington will consider restraints on former president and current criminal defendant Donald Trump. Trump is asking the court to free him from a gag order in his federal election interference case. His bombastic remarks about prosecutors and witnesses are pitting his First Amendment rights against the need to protect next year's trial. NPR justice correspondent Carrie Johnson has been following the arguments and she's here with us to talk more about them. Good morning.

CARRIE JOHNSON, BYLINE: Good morning to you.

MARTIN: So remind us of what kinds of things Donald Trump has been saying about this case.

JOHNSON: A few days after Trump was indicted in August on four felony counts connected to the storming of the Capitol, he posted online, if you go after me, I'm coming after you. He's also called the prosecutors deranged and said they're thugs. Trump has said this judge is a fraud and a hack, he's called his former vice president delusional, and he says the former chairman of the Joint Chiefs of Staff did something so bad that in olden times, the punishment would have been death. He also said his former chief of staff is a weakling and a coward. And those officials - Mike Pence, Mark Milley, Mark Meadows - they all may be called to testify against Trump at trial. Those kinds of things led the judge to impose a gag order on Trump to bar him from attacking potential witnesses and prosecutors and court staff.

MARTIN: OK, I think that people remember that those remarks were pretty disturbing coming from anybody, but especially a former commander in chief. But having said that, the appeals court has put a pause on the gag order while it considers Trump's arguments. So what are they?

JOHNSON: They say this gag order violates his First Amendment rights, as well as the rights of millions of voters who want to listen to Donald Trump. And Trump's team says the prosecutors and witnesses Trump's been blasting are themselves high-level officials and public figures who often criticize Donald Trump in public statements. They say there's really no evidence of any actual or imminent threats to the administration of justice or to this trial that's set for next spring.

MARTIN: So I take it the Justice Department is defending this gag order. What are they saying?

JOHNSON: Absolutely. Prosecutors say this is part of a pattern where Trump targets someone and his supporters respond with threats and intimidation. They point out a woman in Texas has been charged with threatening the judge in this D.C. case. They remind us that election worker Ruby Freeman says she was afraid to go outside after Trump made false accusations against her, and that after Trump posted what he said was former President Obama's address this year, a heavily armed man showed up there. The judge in New York, who's hearing a civil fraud case against Trump, has faced hundreds of threatening calls and letters, too. Prosecutors say Trump is not just a political candidate, he's also a criminal defendant, and he shouldn't be able to launch a smear campaign against people in the course of this trial proceeding.

MARTIN: So it's my understanding that the appeals court moved pretty quickly on this gag order issue. Does that tell us anything about what could come next?

JOHNSON: We know the three judges who are going to hear argument in this case. Of the three, two were appointed by former President Obama, a third by President Biden. And the gag order issue is really the first big dispute to come before the D.C. circuit as part of this federal election interference case against Trump. It will not be the last.

Trump is trying to get these charges against him dismissed. He's arguing he has sweeping presidential immunity, and this is double jeopardy because he was acquitted by the Senate in that impeachment proceeding related to January 6. If the lower court judge rules against him on either of those issues, Trump wants to appeal to the D.C. circuit and possibly the Supreme Court, which could move this trial that's currently set for March 2024 until later in the year. And we know Trump has been looking for any opportunity to delay.

MARTIN: That is NPR justice correspondent Carrie Johnson. Carrie, thank you.

JOHNSON: You're welcome. Transcript provided by NPR, Copyright NPR.