Hearing on Trump gag order in federal 2020 election subversion case

After 2 hours and 20 minutes of oral arguments, the three-judge panel of the DC Circuit Court of Appeals appears inclined to restore the limited gag order in former President Donald Trump’s federal election subversion case, but may loosen some restrictions so he can more directly criticize special counsel Jack Smith.

None of the judges embraced Trump’s claims that the gag order should be wiped away for good because it is a “categorically unprecedented” violation of his free speech rights.

Yet they also posed sharp questions to prosecutors as they tried to find the boundary of where intense campaign-trail rhetoric crosses the line of undermining a criminal case.

The limited gag order from district Judge Tanya Chutkan – which was temporarily frozen by the appeals panel when they agreed to hear the case — restricts Trump’s ability to directly attack Smith, members of his team, court staff or potential trial witnesses. He is allowed to criticize the Justice Department, proclaim his innocence, can say that the case is “politically motivated.” 

The appellate judges, who are all Democratic appointees, heard the case on an expedited schedule and are expected to issue a ruling soon.

Meanwhile, in the Fulton County election subversion case, Donald Trump's attorneys are seeking access to some of the discovery material that special counsel Jack Smith may be holding in the federal case.

The request suggests Trump’s legal team in Georgia believes Smith and federal prosecutors are in possession of material relating to “witnesses the DA’s office may call at trial or factual issues raised in the charges in the indictment that may be in dispute at trial,” Trump's attorneys said in a court filing Monday.

While Smith has produced discovery material to Trump’s lawyers in the federal case, a protective order prohibits those attorneys from sharing it with those in the Georgia case.

The judges on Monday have brought up the possibility that jurors in the case could be the targets of online doxxing as a result of former President Donald Trump’s speech.

“Is there any way, preventatively, to protect someone's technology? Like let's say I'm a prospective juror, can I be protected technologically from like doxxing?” Circuit Judge Patricia Millett asked an attorney from the special counsel’s office at one point.

“Because we do have -- as you appreciate -- the problem of speech by the defendant, and then it has the knock-on effect with the loyalists’ zeal, and that’s then, you know, what causes direct efforts at threatening and harassing individuals,” she said.

Assistant special counsel Cecil Woods VanDevender said he wasn’t aware of any technological tools that would work to mitigate the issue “at the source.”

The potential issue of online threats being directed toward jurors as a result of Trump’s speech has been a recurring topic during Monday’s hearing over the gag order issued against him, and it could factor into the judges' final decision on whether or not they’ll endorse the restrictions imposed by a lower court.

Appeals court judges Patricia Millett and Cornelia Pillard signaled Monday that they’re considering narrowing the already-limited gag order to allow Trump to levy some public attacks against special counsel Jack Smith and his team.

The current gag order prevents Trump from “making any public statements… that target the special counsel… or his staff,” but he is allowed to broadly attack the Justice Department, to proclaim his innocence, and to claim that Smith’s prosecution is “politically motivated.”

Regarding the gag order, Pillard said: “It can't be that he can't mention Mr. Smith,” because most Americans have heard about the case in the context that it was filed by Smith’s team.

Trump can’t be forced under a gag order to “speak Miss Manners while everyone else is throwing targets” at him during a theoretical GOP presidential primary debate, Millett said.

The names of Smith and the other prosecutors are all “part of the public record,” she added.

Circuit Judge Patricia Millett at one point pressed the assistant special counsel on how the government is balancing Donald Trump’s constitutional rights as they seek to partly restrict the former president's speech in the election interference case.

“I’m asking your position -- which doesn't seem to give much balance at all to the First Amendment's vigorous protection of political speech and the notion that high profile public figures or governmental officials who’ve taken on enormous responsibility like prosecutors can't stand up to some inflammatory language,” Millett said.

She added: “It seems to me to contradict Supreme Court precedent and seems to me sort of a very troubling lack of balance on a free speech side on the part of prosecution in this case.”

Assistant special counsel Cecil VanDevender told the judge the government’s position was not that Trump’s statements “in a vacuum are unprotected,” but that the case law surrounding the issue says that some “classic political speech directed toward the government” can be curtailed if it’s likely that it will materially prejudice the proceedings.

Assistant special counsel Cecil VanDevender has started his arguments in defense of the gag order.

VanDevender is scheduled to argue for 20 minutes, but the panel will likely let him have more time. Trump attorney John Sauer was at the lectern for 80 minutes.

“The district court correctly found that the defendant’s well-established practice of using his public platform to target his adversaries, including trial participants in this case, poses a significant and immediate risk to the fairness and integrity of these proceedings,” VanDevender said.

“The order that the district court crafted to address those risks should be affirmed,” he added.

Circuit Judge Patricia Millett told Donald Trump’s attorney that the gag order imposed on him does not represent a broad threat against the former president’s First Amendment rights. 

“First of all, we’re not shutting down everyone who speaks,” she said. “This is only affecting the speech temporarily during a criminal trial process by someone who has been indicted as a felon.”

The comments by Millett are a good indication that the judge is not prepared to agree with Trump’s argument that the gag order is a total violation of his First Amendment rights and must be struck down in its entirety.

Judge Patricia Millett posed a hypothetical about Trump posting about former Vice President Mike Pence on social media, one day before Pence testifies at the trial: “Mike Pence can still do the right thing if he says the right stuff tomorrow.”

Trump lawyer John Sauer said this type of speech could only be restricted if there was a “compelling evidentiary showing” of “an actual threat” against Pence.

The witness list hasn’t been announced yet, but Pence is clearly a major part of the case.

A significant portion of special counsel Jack Smith’s case against Trump revolves around Trump’s efforts to pressure Pence to abuse his position overseeing the Electoral College certification to block the lawful transfer of power after the 2020 election.

As scheduled, each side had 20 minutes to present their arguments before the appeals court panel.

But Trump attorney John Sauer is entering his second hour of grilling from the judges, who are showing no signs of letting up.

The hearing is being held in the court’s large ceremonial courtroom, where members of the court staff, reporters, US Marshals and members of the public have filled much of the seating.

Judge Patricia Millett, when going back and forth with Sauer, is often shaking her head slightly and leaning forward while Judge Cornelia Pillard often asks her questions with a slight smile. Judge Bradley Garcia is largely expressionless.