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Trump’s Push to Lift DC Gag Order Faces Skeptical Appeals Court

(Bloomberg) -- Federal appeals judges on Monday appeared reluctant to give Donald Trump a green light to resume public attacks on witnesses, prosecutors and court staff in the federal election-obstruction case against him, but signaled they were open to narrowing the scope of court-imposed limits on what he can say.

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Trump wants the US Court of Appeals for the DC Circuit — long considered one of the most influential courts in the country — to reverse a partial gag order entered last month by US District Judge Tanya Chutkan.

The DC Circuit put the case on a faster track than typical appeals, but didn’t say when it plans to rule. Trump’s lawyers have already said they’ll ask the US Supreme Court to intervene if the appeals court doesn’t lift the full gag order. A trial is set to begin March 4.

Read More: What Trump Can’t Talk About, According to His DC Court Gag Order

The three-person appellate panel didn’t appear persuaded by Trump’s lawyer, who argued that courts have little power to stop Trump from saying nearly anything he wants about the pending criminal case because it’s “core political speech” protected by the US Constitution’s First Amendment.

But the judges grappled with whether the gag order is clear enough, and whether Chutkan was justified including prosecutors and limiting Trump’s ability to criticize other public figures.

Chutkan ruled Trump still could broadly criticize the prosecution effort, the Justice Department and President Joe Biden. Judge Cornelia Pillard said that given the fact that Special Counsel John “Jack” Smith had become a proxy for the public’s understanding of which of the four criminal cases against Trump were brought by the Justice Department versus state prosecutors, she was doubtful the top official should be off limits for Trump as well.

“Surely he has a thick enough skin,” Pillard said of Smith.

The judges also grappled with how a gag order could be workable in the middle of a presidential campaign.

“We certainly want to make sure that the criminal trial process and its integrity and its truth-finding function are protected,” Judge Patricia Millett said. “But we gotta use a careful scalpel here and not step into really sort of skewing the political arena, don’t we?”

The judges grew frustrated by the lack of direct answers from Trump lawyer D. John Sauer as they pressed for examples of when the defense believed a court could limit the speech of a criminal defendant running for public office. Sauer struggled to come up with a concrete scenario absent specific evidence of “clear and present danger” to another person and short of Trump making direct threats against someone.

The lawyer arguing for Smith’s office, Cecil VanDevender, faced questions about what speech by Trump crossed the line from permissible criticism — especially when it came to public figures like former top administration officials — to prohibited “targeting.”

Chutkan’s order prohibited Trump from making statements that “target” Smith and other prosecutors, court staff and witnesses and the substance of their testimony. He also wouldn’t be allowed to direct others to make the statements he is barred from making.

The DC Circuit on Nov. 3 granted Trump’s request to temporarily pause the gag order while he appeals. Trump resumed sharing posts online that would likely violate Chutkan’s order, including calling Smith “deranged.”

The three-judge panel heard arguments several days after a state appeals court in New York halted gag orders that bar Trump and his lawyers from making public statements about a judicial law clerk and other court staff in connection with an ongoing civil fraud trial.

The randomly-assigned DC Circuit panel features Millett and Pillard, who were nominated by former President Barack Obama, and Judge Bradley Garcia, who was nominated by President Joe Biden.

Garcia said that Chutkan had partly based her reasoning for the gag order on the events leading up to the Jan. 6, 2021, attack on the US Capitol and the role that Trump’s public comments played. Given that the atmosphere would grow “increasingly tense” as the trial approached, Garcia asked Sauer why Chutkan had to “wait and see, and wait for the threats to come, rather than taking a reasonable action in advance?”

Sauer replied that any risk had to be rooted in solid evidence of an “imminent” threat, not inferences based on events from several years ago.

The case is US v. Donald Trump, US Court of Appeals for the DC Circuit, 23-3190.

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