And yet, Monday’s oral arguments at the U.S. Court of Appeals for the D.C. Circuit showed these jurists taking seriously Trump’s claims that the gag order violates his free speech rights, probing the precise contours of District Judge Tanya S. Chutkan’s edict that Trump refrain from attacking witnesses, prosecutors and court staff in the election interference case before her.
I spend too much time these days bemoaning ideologically driven jurists who show scant respect for precedent in their drive for preordained results. Monday’s session — the scheduled time stretched beyond the allotted 40 minutes and well past the two-hour mark — offered an impressive counterexample. They weighed the conflicting imperatives presented by this novel situation: the broad protections afforded by the First Amendment, particularly in the midst of a presidential election, versus the trial judge’s need to maintain the integrity of the pending prosecution and the safety of those involved.
As usual, because Trump does not behave like a normal politician or a normal criminal defendant, his claims present novel and difficult issues — what attorney Adam Unikowsky has termed the “Law of Trump.” Ordinary criminal defendants are counseled by their lawyers to keep quiet; they don’t go out of their way to provoke the judge.
Then there is Trump, with his attack on “Deranged Jack Smith & his team of Thugs”; his ominous warning, “IF YOU GO AFTER ME, I’M COMING AFTER YOU!”; and his even more ominous suggestion that then-Joint Chiefs of Staff Chairman Gen. Mark A. Milley’s behavior was so egregious that “in times gone by, the punishment would have been DEATH.”
The legal system doesn’t have extensive experience with this kind of behavior, so there is not much case law in this area. We know broadly that judges have an obligation to criminal defendants to make certain that trial proceedings are conducted fairly and that the defense team retains a constitutional right to make some public statements.
Into this sparse legal landscape strides Trump, transgressing every possible boundary. Chutkan, at the urging of prosecutors, issued an order that prohibited Trump and others from making public statements “that target (1) the special counsel prosecuting this case or his staff; (2) defense counsel or their staff; (3) any of this court’s staff or other supporting personnel; or (4) any reasonably foreseeable witness or the substance of their testimony.” She emphasized, however, that Trump could make comments denouncing the prosecution as politically motivated, asserting his innocence or otherwise “criticizing the campaign platforms or policies of Defendant’s current political rivals.”
I haven’t written previously about Chutkan’s order or the similar one imposed by a New York state judge, now on hold, in part because I do not come down squarely on either side. Trump’s lawyers contend that the Chutkan order runs afoul of the First Amendment because it imposes a prior restraint on “core political speech.” Prosecutors insist it is essential to protect the fairness and safety of proceedings.
This is not an easy call, given the complex circumstances. The presidential campaign is already in high gear, with Trump poised to secure the GOP nomination. The ordinary, self-imposed constraints on a defendant do not deter him. The risks are not simply matters of appropriate decorum; Chutkan herself has been the target of death threats.
Both sides overstate their case — Trump’s lawyers far more than the prosecution’s — which has left me flyspecking the order, worrying not so much about its overall legitimacy than about whether individual elements go too far.
What the appeals court argument made clear is that this is precisely the point. What might make for a mushy column produces good law, accommodating competing needs. It’s not thumbs up or down on the need for an order but a word-by-word analysis of whether it provides sufficient clarity or goes further than necessary.
“There’s a balance that has to be undertaken here, and it’s a very difficult balance in this context,” Judge Patricia Millett told prosecutor Cecil VanDevender. “But we have to use a careful scalpel here and not step into really sort of skewing the political arena, don’t we?”
Trump attorney D. John Sauer did not help his cause by staking out a maximalist position, arguing that any protective order could only prohibit speech that constitutes a “clear and present danger,” a test that goes beyond what has been required by the courts.
The panel peppered a resistant Sauer with hypotheticals that sought to determine whether there were any restrictions on Trump that he thought would be permissible. Answer: Not really.
But the more interesting exchanges were with VanDevender as the judges tried to stress test the language in Chutkan’s order, asking how it might operate in coming months, as the trial approaches and the campaign intensifies.
“‘Targeting’ does raise a little bit of unclarity,” Judge Cornelia Pillard noted, referring to the order’s prohibition on targeting witnesses. For instance, she said, Milley has “spoken publicly about his efforts to shield the world from the consequences of the defendant’s conduct. That has got to be fair game” for Trump to respond.
Likewise, Millett noted, “The notion that high-profile public figures or governmental officials who’ve taken on enormous responsibility like prosecutors can’t stand up to some inflammatory language seems to me to contradict Supreme Court precedent and seems to me sort of a very troubling lack of balance on the free speech side.”
VanDevender conceded that “the special counsel himself is a somewhat unique case because he is both an individual trial participant and very much represents the institutional interests of the Department of Justice,” so that Trump’s “merely referencing him or criticizing him” could not be barred.
This is a mess entirely of Trump’s creation — it is his line-crossing commentary that has necessitated judicial intervention. Chutkan took pains to carefully limit her order — for instance, she left Trump free to attack her personally, just not other court staff — for which she deserves credit. The appellate judges also seemed to be seeking to discern the right balance between Trump’s free speech rights and the needs of the criminal justice system.
To listen to them was to hear jurists struggling to ensure constitutional protections for a defendant who disdains the document and who will no doubt attack them as partisan hacks whatever they decide.
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