A lawyer for Donald Trump was berated from the bench during a tense hearing Monday on Trump's gag order.
Judge Patricia Millett, of the D.C. Circuit, raised her voice repeatedly as she grilled attorney John Sauer about the scope of Trump's speech restrictions - although the panel of judges later suggested Smith had gone too far in silencing Trump.
Millett showed frustration with Sauer's responses to a series of hypothetical questions about actions Trump might take concerning witnesses.
"'Hey witness X, I know the prosecutor is bothering you, trying to get you to say bad things about me. Be a patriot,'" Millett said, impersonating Trump.
Audio clips of Millett's contemptuous browbeating, shared by journalist Julie Kelly, went viral.
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
Although Millett was the most aggressive questioner, all three judges - all of whom were appointed by Democrats - showed skepticism of Sauer's sweeping defense of free speech.
All three asked Sauer why there should not be "proactive" restrictions to protect witnesses and the "integrity" of the case, which Trump has called a political witch hunt.
Judge Cornelia Pillard balked when Sauer said there is "near complete" overlap between the issues covered by the gag order and Trump's political campaign for president. For example, why should Trump be permitted to target career employees working for the court?
Sauer explained: if a court employee turns out to be "extremely biased" and Trump is not permitted to comment, "we have a huge First Amendment problem."
If a staffer turns out to be biased, nothing stops Trump from filing an emergency motion with the court, Pillard said. But that "flips the First Amendment on its head," Sauer said.
"I'm just saying, there's a protection there," Pillard shot back.
Judge Brad Garcia called the gag order "narrow" and said the district court judge who issued it, Tanya Chutkan, gave Trump "clear warnings." The judges also mentioned a death threat Chutkan had received, but Sauer said no threats could be attributed to Trump directly given the frenzy of "wall-to-wall" media coverage of the case.
After grilling Sauer for more than an hour, the judges went back and forth with Jack Smith's prosecutor, Cecil VanDevender. The judges pushed back on Smith - who was present at the hearing - and his demands for almost complete protection from criticism.
The idea that government officials cannot withstand "some inflammatory language" shows a "very troubling lack of balance" where the First Amendment is concerned, Millett said.
It would not be reasonable to expect Trump to muzzle himself at a primary debate where his rivals might make an issue of the prosecution, Millett added. "He has to speak Miss Manners while everyone else is throwing targets at him."
"It can't be that he can't mention Mr. Smith," Pillard chimed in. "Surely he has a thick enough skin."