A federal appeals court will consider restraints Monday on the former president and current presidential candidate Donald Trump, who's asking the judges to free him from a gag order in his federal election interference case.
Trump's bombastic remarks about prosecutors and witnesses are pitting his First Amendment rights against the need to protect next year's trial. Multiple courts are now grappling with Trump's remarks, a reflection of how a man who tested the limits of executive power in the White House is now testing the limits of the courts.
For special counsel Jack Smith and his prosecution team, the pattern is clear. Trump targets someone and his supporters respond with threats and intimidation.
Just days after the Justice Department unveiled a four-count felony indictment against Trump in Washington, D.C., the former president posted, "If you go after me, I'm coming after you." Prosecutors said some of Trump's supporters took note and took action.
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"The defendant does not need to explicitly incite threats or violence in his public statements, because he well knows that by publicly targeting perceived adversaries with inflammatory language, he can maintain a patina of plausible deniability while ensuring the desired results," assistant special counsel Cecil VanDevender wrote in a recent court filing.
He cited numerous examples in court papers: a woman in Texas has been charged with making threats against U.S. District Judge Tanya Chutkan, who's overseeing the trial in Washington, D.C. Another judge in New York presiding over a civil fraud case involving Trump has faced hundreds of threatening calls and letters. And after Trump shared what he said was former President Obama's address online this year, a heavily armed man showed up there.
Judge Chutkan has limited Trump from attacking prosecutors, likely witnesses, and court staff. The judge said Trump, as a criminal defendant, does not have limitless First Amendment rights. And she said he does not have "carte blanche to vilify and explicitly encourage violence against public servants."
Under the terms of her limited gag order, which has been paused pending the appeal, Trump is still free to make remarks about the Biden administration and the Justice Department; to assert his innocence; and to criticize his campaign rivals.
Trump's lawyers argue the gag order muzzles his "core political speech" during a campaign to return to the White House, at a time when he is the frontrunner for the GOP nomination. They say the gag order is both vague and too broad, and the Justice Department has provided no evidence of any "actual or imminent threat" to the trial next year.
"The prosecutors and potential witnesses addressed by President Trump's speech are high-level government officials and public figures, many of whom routinely attack President Trump in their own public statements, media interviews, and books," Trump attorneys D. John Sauer and John Lauro wrote in court papers.
In a written statement Friday, the Trump campaign criticized the gag order and urged the higher court to reverse it: "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, just weeks before the Iowa caucuses. No court has ever upheld a gag order on core political speech at the height of a campaign."
Three judges on the D.C. Circuit court are scheduled to hear the Trump appeal. Two were appointed by President Obama and a third by President Biden.
The gag order issue is the first big dispute to come before the appeals court but it won't be the last. Trump is trying to get the D.C. charges against him dismissed by arguing he enjoys sweeping presidential immunity, and that this case violates double jeopardy because he won an acquittal from the U.S. Senate in an impeachment proceeding related to the Capitol siege on Jan. 6, 2021.
If Judge Chutkan rules against him on either of those issues, Trump has signaled he would appeal to the D.C. Circuit and ultimately, the Supreme Court, which could delay his trial set for March 2024.
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