A federal appeals court in Washington sounded skeptical Monday of Donald Trump’s arguments that he should not face a gag order that restricts his statements about the federal criminal case in Washington tied to his effort to overturn the 2020 election.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit grilled Trump attorney Dean John Sauer for nearly two hours over the order, which was issued by the district court judge overseeing that criminal case.
The order restricts Trump from “targeting” witnesses, court staff and prosecutors with language that could have them face harassment.
Sauer highlighted how it clamped down on the speech of the leading candidate for the Republican presidential nomination, the kind of political debate that is central to free speech protections of the First Amendment.
“The order is unprecedented, and it sets a terrible precedent on future restrictions on core political speech,” Sauer said.
Judge Patricia Millett questioned whether Sauer’s position would allow Trump to attack the criminal process by labelling his commentary “political speech” related to the campaign when it really was meant to sway what happened in the courtroom.
“Labeling it core political speech begs the question of whether it is in fact political speech, or whether it is political speech aimed at derailing or corrupting the criminal justice process,” Millett said.
Sauer also argued that a judge would need to have “incredibly compelling” evidence that the trial was about to be derailed to justify restraining Trump’s speech to justify a prior restraint on Trump’s speech.
He said District Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia imposed a gag order restricting Trump when there was no evidence witnesses had been harassed.
Judge Bradley N. Garcia questioned whether that requirement would go too far because it would require Chutkan to wait until after the damage was done.
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