WASHINGTON – Federal appeals court judges are set to hear arguments Monday over restrictions on what Donald Trump can say about his election conspiracy case, a gag order Trump calls unconstitutional and prosecutors contend is necessary to avoid threats and harassment against his targets.
The former president’s lawyers called U.S. District Judge Tanya Chutkan’s gag order “a heckler’s veto” to silence him while he campaigns for president. She ordered Trump on Oct. 16 not to comment about court staff, prosecutors or potential witnesses.
But Justice Department special counsel Jack Smith argued that Trump’s comments in speeches or on social media can harass or intimidate his targets, with threats of violence against the judge herself.
The D.C. Circuit Court of Appeals has lifted Chutkan’s restrictions while the case is argued. A three-judge panel − Judges Patricia Ann Millett, Cornelia Pillard and Bradley Garcia − will hear the case. Millett and Pillard were appointed by Barack Obama and Garcia by Joe Biden.
The case involves one of two gag orders Trump is appealing, along with one in his New York civil fraud trial. Both gag orders were lifted while the cases are argued. The federal case is significant because it could be his first criminal trial, scheduled to begin March 4, out of four pending against him.
What does Chutkan’s gag order do?
Trump faces four charges in the federal case: conspiracy to defraud the United States; two conspiracy counts for corruptly obstructing the certification of the election on Jan. 6, 2021; and conspiracy to violate people’s right to have their votes counted. Trump has pleaded not guilty.
Prosecutors argued that while Trump isn’t charged with inciting the insurrection Jan. 6, the indictment “squarely alleges he is responsible” for the events of Jan. 6, when “lives were lost; blood was shed; portions of the Capitol building were badly damaged” and the lives of lawmakers and staffers were endangered.
Prosecutors asked for the gag order by arguing that Trump posted a public threat on social media three days after his indictment: “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” Prosecutors said he disparaged prosecutors as “deranged,” “thugs” and “lunatics” and called the presiding judge a “fraud” and a “hack.” And Trump has targeted potential witnesses, including former Vice President Mike Pence as “delusional” and “not a very good person” and said the former chairman of the Joint Chiefs of Staff had done something “so egregious that, in times gone by, the punishment would have been DEATH!”
Chutkan ordered Trump not to comment on the court staff, prosecutors or potential witnesses. She said he could continue to criticize the Justice Department and political rivals such Pence, a former rival for the GOP nomination.
But Trump wants to comment to 100 million followers on social media about the judge, prosecutors and potential witnesses for what he calls a political prosecution.
Chutkan had suspended her order for Trump’s anticipated appeal. But she reinstated it − before it was lifted on appeal − when Trump posted on social media about his former White House chief of staff, Mark Meadows, a potential witness against him.
Trump contends gag order creates a ‘heckler’s veto’ against his presidential campaign
Trump’s campaign issued a statement Friday arguing the gag order allowed an unelected judge to censor a leading candidate for president weeks before the Iowa caucuses.
“No court has ever upheld a gag order on core political speech at the height of a campaign,” the statement said. “The unconstitutional Gag Order in the DC case should be speedily reversed.”
Trump’s lawyers said the gag order prevented his political speech based on his viewpoint, which they argued was unconstitutional and amounted to a “heckler’s veto” against criticism of public figures and matters of enormous public interest.
“The First Amendment forbids this heckler’s veto, and even if it were legally viable − which it is not − no convincing evidence supports it,” Trump lawyer John Sauer wrote in a filing.
Sauer added that a single judge shouldn’t stand between Trump and his audience of the entire country.
“The district court had no business inserting itself into the Presidential election, just weeks before the Iowa caucuses,” Sauer wrote. “The First Amendment does not permit the district court to micromanage President Trump’s core political speech, nor to dictate what speech is sufficiently ‘general and what speech is too ‘targeted’ for the court’s liking.”
Prosecutors urge appeals court to uphold gag order to prevent a ‘smear campaign’
Prosecutors urged the appeals court to uphold the gag order, to prevent threats and intimidation of court officials and potential witnesses.
“In the defendant’s view, the likelihood that harassment, threats, and intimidation would foreseeably result from his targeting was ‘totally irrelevant,'” prosecutors wrote. But, like every other criminal defendant, he does not have ‘carte blanche to vilify and implicitly encourage violence against public servants’ and he may not ‘launch a pretrial smear campaign against participating government staff, their families, and foreseeable witnesses,'” prosecutors added, quoting Chutkan.
This article originally appeared on USA TODAY: Donald Trump’s lawyers to urge appeals court to overturn gag order