Appeals court oral arguments suggest Trump gag order may be cut back

 November 21, 2023

Oral arguments held Monday on an appeal by former President Donald Trump of a gag order imposed on him by Judge Tanya Chutkan as part of a D.C. case against him that alleged he tried to overturn the 2020 presidential election on January 6, 2021, suggested that judges may trim the gag order, but not necessarily eliminate it.

A three-judge panel questioned lawyers for both Trump and for the prosecution, led by Jack Smith.

Smith argued that the gag order is necessary to prevent Trump from intimidating witnesses with his statements or by inciting supporters to make threats against them.

Trump argued that the gag order violates his First Amendment rights and constitutes election interference by the DOJ, led by President Joe Biden, currently his chief rival in 2024.

Skeptical of both sides

The judges seemed skeptical of both sides during the two-and-a-half hours of questioning.

Judge Patricia Millet, an Obama appointee, acknowledged that the gag order might make it difficult for Trump to speak freely in a political debate setting.

“He has to speak ‘Miss Manners’ while everyone else is throwing targets at him?” Millett said skeptically. “It would be really hard in a debate, when everyone else is going at you full bore. Your attorneys would have to have scripted little things you can say.”

Judge Nina Pillard, another Obama appointee, said she didn't think witness testimony from such public figures as former Vice President Mike Pence or former Attorney General Bill Barr would be swayed by any threats they received.

“I would assume that their testimony would not be affected,” Pillar said repeatedly.

Using a "scalpel"

The judges seemed disposed to leave some level of gag order in place that restricts Trump's speech less but doesn't allow him to directly threaten anyone.

“We have to use a careful scalpel here,” Millett said.

A ruling may not come right away in the case, and could take several weeks or months.

The court could rule on the legality of the order and what must be struck, or he could send the whole thing back to Chutkan for her to rewrite it. A result either side feels is unfavorable could be appealed higher, even to the Supreme Court, for a final decision.

While Trump isn't able to declare victory until the panel rules, the fact that they seem to be treating the issue fairly is a huge win for Trump when all of the judges were Democrat-appointed.

" A free people [claim] their rights, as derived from the laws of nature."
Thomas Jefferson
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