Former President Donald Trump, pictured here at a mixed martial arts event on Nov. 11, is asking to be released from silence in an election interference case.

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Former President Donald Trump, pictured here at a mixed martial arts event on Nov. 11, is asking to be released from silence in an election interference case.

Frank Franklin II/AP

A federal appeals court is considering whether to restrain former president and current presidential candidate Donald Trump, who is asking judges to release him from silence in his federal election interference case.

Trump’s bombastic remarks toward prosecutors and witnesses pitted his First Amendment rights against the need to protect next year’s trial. Many 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.

During more than two hours of arguments Monday before a three-judge panel in Washington, D.C., Trump’s lawyer, D. John Sauer, argued that the limited silence order was aimed at Trump’s “primary political speech.” ‘a man running for the highest political office in the country. There is “almost complete overlap” between Trump’s defense of criminal charges and his ongoing political campaign, he added.

“The facts here fall far short of justifying this silence,” Sauer said.

But for special counsel Jack Smith and his team of prosecutors, the trend is clear. Trump targets someone and his supporters respond with threats and intimidation.

Just days after the Justice Department unsealed a four-count indictment against Trump in Washington, D.C. over the summer, the former president posted: “If you sue me, I take it out on you. » Prosecutors said some Trump supporters took note and took action.

“The accused need not explicitly incite threats or violence in his public statements, because he knows full well that by publicly targeting perceived adversaries with inflammatory language, he can maintain a patina of plausible deniability while ensuring the desired results,” said Assistant Special Counsel Cecil. VanDevender wrote in a recent court filing.

He cited numerous examples in court documents: A Texas woman was accused of making threats against U.S. District Judge Tanya Chutkan, who is overseeing the trial in Washington, DC. Another New York judge presiding over a civil fraud case involving Trump faced hundreds of people. threatening calls and letters. And after Trump shared what he said was former President Obama’s speech online this year, a heavily armed man showed up at the venue.

That threat has not abated or “become obsolete,” VanDevender argued Monday before the appeals court. Trump “constantly” posted inflammatory messages to national audiences, he said.

Appeals Court Judge Bradley Garcia noted that as the political campaign heats up next year, Trump’s rhetoric could follow suit. “As this trial approaches,” the judge said, “the atmosphere is going to become increasingly tense.” Why must the district court wait to see” what Trump might release at that time, instead of taking action now to prevent witness intimidation or threats. of violence?

Sauer, Trump’s lawyer, said his language can be “brutal” and “hard-hitting in many cases,” but he said he was addressing public figures, like prosecutors and former members of his administration.

“That’s not really the way I want my children to talk, but that’s really not the point,” Judge Patricia Millett said. At another point, the judge spoke of the need to use a “careful scalpel” to avoid interfering in the political arena.

All three justices appeared to struggle to balance the significant weight they give to the First Amendment with the criminal trial process. The argument, initially scheduled to last 40 minutes, lasted nearly two and a half hours.

“With the thanks of counsel for your helpful submissions and your patience with us, this matter is submitted,” Judge Millett said. She offered no timetable for the court’s decision.

The judge who will oversee next year’s trial, Tanya Chutkan, blocked Trump from attacking prosecutors, likely witnesses and court staff. The judge said Trump, as a criminal defendant, does not have unlimited rights under the First Amendment. And she added that he did not have “carte blanche to explicitly vilify and encourage violence against public officials.”

Under the terms of his limited silence order, which was suspended pending appeal, Trump is still free to make remarks about the Biden administration and the Justice Department; assert one’s innocence; and to criticize his campaign rivals.

Trump’s lawyers say the ban is both vague and overbroad, and the Justice Department has provided no evidence of an “actual or imminent threat” for next year’s trial.

“The prosecutors and potential witnesses addressed by President Trump’s speech are high-level government officials and public figures, many of whom regularly attack President Trump in their own public statements, media interviews and in their books” , said Trump’s lawyers, D. John Sauer and John Lauro. » wrote in court documents.

In a written statement Friday, the Trump campaign criticized the gag order and urged the higher court to overturn it: “The gag order appoints an unelected federal judge to censor what the leading presidential candidate United States can say to all Americans, simply “A few weeks before the Iowa caucuses. No court has ever silenced fundamental political speech at the height of a campaign. “

The question of silence is the first major dispute brought before the court of appeal, but it will not be the last. Trump is trying to have DC’s charges against him dismissed by arguing that he has broad presidential immunity and that the case violates double jeopardy because he won an acquittal from the US Senate in impeachment proceedings related to the siege of the Capitol on January 6, 2021. .

If Judge Chutkan rules against him on any of these issues, Trump has indicated he will appeal to the Washington Circuit and ultimately to the Supreme Court, which could delay his planned trial in March 2024.

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