The panel’s three judges asked skeptical and sometimes aggressive questions of lawyers on both sides while weighing whether to reinstate a trial judge’s order barring Trump from making inflammatory comments against prosecutors, potential witnesses and court staff.
The justices raised a litany of hypothetical scenarios that could arise in the coming months as they considered how to balance an order that protects Trump’s First Amendment rights with the need to protect “the process of criminal trial, its integrity and its truth-seeking function. .”
“There’s a balance that has to be struck here, and it’s a very difficult balance in this context,” Judge Patricia Millett told Cecil VanDevender, an attorney in special counsel Jack Smith’s office. “But we have to use a careful scalpel here and not we get into some kind of distortion of the political arena, right?”
VanDevender responded that he agreed, but said he thought the silence imposed last month struck an appropriate balance.
The court did not immediately rule, but its questions left open the possibility of narrowing the silence order, setting parameters on what Trump, as a criminal defendant and a leading candidate for the 2024 Republican presidential nomination, , can and cannot say at trial. the date is coming. Trump’s team has indicated it will oppose any restrictions on the Supreme Court.
Whatever the outcome, the stakes are high given the volume and intensity of Trump’s public comments on the matter, the massive public platform he holds on social media and on the campaign trail, and the limited legal precedent for restricting the speech of political candidates – let alone for the White House – who are criminal defendants.
Monday’s proceedings lasted nearly two and a half hours, with Trump lawyer D. John Sauer answering the majority of questions as he insisted the silence order was too vague and unconstitutional.
“This order is unprecedented and sets a terrible precedent for future restrictions on core political speech,” Sauer said. He described it as a “heckler’s veto,” unfairly relying on the theory that Trump’s speech might one day incite others to harass or harass. intimidate their targets.
“They cannot establish a causal link between a social media post and a threat or harassment when we have total media coverage of this matter,” Sauer told the court.
But these points were received coolly by the court.
Judge Brad Garcia pressed Sauer to explain why the court should not take preventative measures before violence materializes against potential witnesses or others.
“As expected, this is going to intensify as well as the threats, so why isn’t the district court justified in taking a more proactive step and not waiting for more and more threats occur and intervene to protect the integrity of the trial? Garcia said.
Although Sauer argued that prosecutors failed to draw a direct line between Trump’s rhetoric and actual harm, VanDevender pointed out that a Texas woman is accused of making death threats against the judge in the Trump affair, Tanya Chutkan, just one day after Trump in August. posted on social media: “If you sue me, I’ll come after you!” » Prosecutors cited this episode in their initial request for a silence order, saying Trump’s messages had “already influenced the public.”
Another judge hearing the arguments, Cornelia Pillard, sharply questioned Sauer on whether he believed restrictions on Trump’s speech were permitted, telling him: “I don’t hear you giving any weight to the interest of a fair trial.”
Judge Millett balked at Sauer’s argument that Trump was merely engaged in basic political speech.
“Calling this speech basic political raises the question of whether it is political speech or speech intended to derail the criminal process,” she said.
But the judges also repeatedly questioned where to strike a balance, raising the possibility that the silence would ultimately be reduced. Millett at one point expressed disbelief that Trump would not be able to respond to criticism from rival candidates in a debate.
“He has to talk about Miss Manners while everyone is throwing targets at him?” ” she asked.
The order has had a whirlwind trajectory through the courts since Chutkan imposed it in response to a request from prosecutors, who cited, among other comments, Smith’s repeated disparagement of Smith as “disturbed.” .
The judge lifted it days after he entered, giving Trump’s lawyers time to prove why his remarks should not be restricted. But after Trump took advantage of that break with comments that prosecutors say were intended to dissuade his former chief of staff from giving unfavorable testimony, Chutkan reinstated him.
The appeals court later lifted it after reviewing Trump’s appeal.
Pillard and Millett are appointees of former President Barack Obama. Garcia joined the bench this year after being appointed by President Joe Biden. Obama and Biden are Democrats.
The four-count indictment against Trump in Washington is one of four criminal cases he faces as he seeks to win back the White House in 2024. The case is scheduled to go to trial March 4 next.
He was charged in Florida, also by Smith’s team, with illegally hoarding classified materials at his Mar-a-Lago estate in Palm Beach, Florida. He was also indicted in New York state court for paying money to porn actor Stormy Daniels, who alleged an extramarital affair with him, and in Georgia for trying to overturn the presidential election of 2020 in this state.
He has denied any wrongdoing.
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