WASHINGTON — Lawyers for Donald Trump and the Justice Department they were squaring It will be held Monday in a federal appeals court, where the former president’s lawyers argue that his constitutional rights have been violated by a gag order that prohibits him from disparaging witnesses and prosecutors associated with the election interference case.
Both sides They began making their arguments in Washington before a three-judge panel of the United States Court of Appeals for the D.C. Circuit shortly after 9:30 a.m. ET, with special counsel Jack Smith, who made the decision to charge to Trump, sitting in the front row. . The hearing is expected to last approximately one hour.
Trump’s lawyer, D. John Sauer, argued that leaving the gag order in place would set a “terrible precedent” over “restrictions against core political speech.”
The judges, two nominated by former President Barack Obama and one by President Joe Biden, issued an order this month to suspend the gag order until they could hear arguments in the appeal. Pressed by one about prosecutors’ argument that Trump’s public comments about witnesses and officials have led to people being “threatened and harassed,” Sauer said: “That’s all based on evidence that’s three years old.” He said Trump has commented on the case “incessantly” and that there is no evidence that anyone in the election interference case was threatened.
Asked whether it was necessary to balance Trump’s political speech with concerns about threats, Sauer said his client should have the right to “absolute freedom” to speak his mind.
Trump has also maintained that, as a presidential candidate, his speech should not be impeded in any way.
“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,” Trump said in a statement Friday. “No court has ever upheld a gag order on central political speech at the height of a campaign,” he added, calling for the ruling to be “quickly overturned.”
Prosecutors from special counsel Jack Smith’s office argue that the order is necessary for a fair trial and that Trump’s social media posts and public comments about potential witnesses and attorneys in the case raised risks of witness harassment and intimidation. .
U.S. District Judge Tanya Chutkan, who is overseeing the case, agreed with prosecutors in an order last month.
“Undisputed testimony cited by the government demonstrates that when the defendant has publicly attacked people, including in matters related to this case, those people are consequently threatened and harassed,” Chutkan wrote in an Oct. 17 ruling that cited the comments. of Trump about how some people involved in the case “are liars, or ‘thugs,’ or deserve death.”
“The court finds that such statements pose a significant and immediate risk that (1) witnesses will be intimidated or unduly influenced by the prospect of themselves being harassed or threatened; and (2) attorneys, public servants, and other court personnel will themselves become targets of threats and harassment,” the judge wrote.
His gag order prohibited Trump from “making public statements or directing others to make public statements” directed at potential witnesses and the substance of their testimony, as well as the special counsel, his staff and court employees.
But he also made some exceptions by explicitly allowing Trump to continue criticizing the Biden administration and the Justice Department in connection with the case, arguing that the case against him is politically motivated and claiming his innocence. Chutkan also said he would not prohibit “statements that criticize the campaign platforms or policies of the defendant’s current political rivals, such as former Vice President Pence,” a then-presidential candidate who will likely be called as a prosecution witness when the case comes to a head. its end. trial in March.
Trump’s lawyers appealed the order, arguing that Chutkan was acting as “a barrier between the leading presidential candidate, President Donald J. Trump, and all Americans across the country,” and that the court “has no business what to insert in the presidential election.” .”
“President Trump’s speech on this case is a quintessential campaign speech,” and the “First Amendment does not allow the district court to micromanage President Trump’s core political speech,” his lawyers argued.
Prosecutors responded that Trump was seeking special treatment and urged the appeals court not to give it to him.
In their filing, government lawyers said Trump maintains “that it is not enough for him to be able to defend himself in court, publicly profess his innocence, criticize the presiding judge, characterize the prosecution as politically motivated, and criticize Trump’s platforms and policies.” . his political opponents. He should also be allowed to engage in a concerted campaign targeting witnesses and public servants, such as judicial staff and career prosecutors, and even his families, with inflammatory language that is likely to result in harassment, intimidation and threats.”
“No other criminal defendant or defense attorney could credibly make such a claim, and the Court should reject the defendant’s request to craft a special rule just for him,” they added.
This is not the first time Trump has received a gag order, nor the first time he has appealed it.
The New York judge presiding over Trump’s current $250 million civil fraud trial imposed a gag order last month after Trump defamed the judge’s law clerk in a social media post. After an appeal, a state court temporarily lifted the gag order until the matter can be considered by a full panel of judges later this month.
Daniel Barnes reported from Washington and Dareh Gregorian from New York.