A three-judge federal appeals court reviewing Donald Trump’s request to overturn U.S. District Judge Tanya Chutkan’s limited gag order listened for nearly two and a half hours to arguments that were slated to last a total of 40 minutes. They appeared largely skeptical of Trump’s attorney’s arguments, but experts say they believe the court will uphold the gag order while narrowing it somewhat to protect the ex-president’s First Amendment rights.
“We have to use a careful scalpel here and not step into skewing the political arena,” U.S. Court of Appeals for the District of Columbia Judge Judge Patricia Millet said in the latter half of Monday’s hearing. MSNBC legal analyst Katie Phang called that “the crux” of the case. She added: “Judges are saying that there is a balance here to protect the integrity of the criminal judicial system, but not to infringe on someone’s rights.”
At the end, former U.S. Attorney Harry Litman observed, “Seems as if they want to affirm in principle but narrow the terms. Court raised many challenging line-drawing problems to protect first amendment and trial integrity.” He also noted that the “court obviously thinks neither side has nailed proper balance between protecting trial integrity and safeguarding political speech.”
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Former FBI General Counsel Andrew Weissmann, an MSNBC legal analyst, called the three-judge panel “impressive,” and noted they “struggle[d] with what to do for ‘public figures’ where the Trump speech is not connected sufficiently to the upcoming criminal trial. But IMHO they are going to uphold the gag order, but make it more limited and clearer.”
“Prediction,” Weissman added: “the gag order in DC will be upheld, at the very least, as it applies to public figures where Trump’s targeting is with respect to the trial.”
But MSNBC executive producer Kyle Griffin noted during the hearing that Judge Patricia Millett said the gag order order doesn’t threaten Trump’s First Amendment rights: “This is only affecting the speech temporarily during a criminal trial process by someone who has been indicted as a felon.”
Judge Chutkan’s gag order was already very limited and narrowly drawn. It simply barred Trump from targeting witnesses or potential witnesses, court personnel (although not Judge Chutkan), Special Counsel Jack Smith, and his prosecutors, but did not bar him from going after the Dept. of Justice and President Joe Biden.
After Monday’s arguments, The New York Times reported the judges “left open the possibility of adjusting the terms of the order or even narrowing the scope of the people covered by it, including by potentially freeing Mr. Trump to attack Jack Smith, the special counsel overseeing the federal cases against him.”
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