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Trump Lawyer Trips Over His Own Argument as Judges Appear Skeptical of Gag Order Appeal
A three-judge panel in federal court in Washington, D.C. appeared skeptical of arguments an attorney for Donald Trump made Monday in his appeal of a very narrow gag order imposed by U.S. District Court Judge Tanya Chutkan.
Barely 20 minutes into arguments, former acting U.S. Solicitor General Neal Katyal wrote: “The gag order argument in our nation’s second highest court is … not going well for criminal defendant Donald Trump.” He also described Trump’s layer as “struggling.”
Judge Chutkan’s order prohibits Trump from targeting court personnel, witnesses including potential witnesses, Special Counsel Jack Smith, and his staff.
Minutes into Trump attorney John Sauer’s claims, Judge Bradley Garcia, one of the three judges on the panel, cut in and stated that a court has already overruled one of his arguments: “That court rejected the argument you’re making today.”
At one point another judge pressed attorney Sauer, asking if he were suggesting Donald Trump is above the law. Sauer’s response: “We certainly haven’t argued that.”
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The judge also warned Sauer his suggestion that everything Trump says is political speech may be faulty, that it may not necessarily be political speech. She said what Sauer is calling Trump’s “core political speech” could actually be “political speech aimed at derailing or corrupting the criminal justice process.”
“You can’t simply label it” core political speech.
Later, Judge Garcia said, “We have a past pattern. When the defendant speaks on this subject, threats follow, and now, he’s making similar statements again, we’re months out from the trial. This is predictably going to intensify … Why does the district court have to wait and see, wait for the threats to come?”
At another point, one of the judges told Sauer: “Back in August,” the district court “gave clear warnings to the parties not to make the type of statements that are at issue. That trend continued. And now we have an order that’s targeted at the exact types of statements that have been occurring.”
The judge also reminded Sauer, “A day after he said, ‘if you come after me, I’m coming after you,’ that threat was issued.”
“That evidence is very specific,” the judge pointed out. “As this trial approaches, the atmosphere is going to be increasingly tense. Why does the district court have to wait and see, and wait for the threats to come? Rather than taking a reasonable action in advance?”
At another point, the judge told Sauer, “the conditions of release in this case, prohibit your client from communicating about the facts of the case with any individual known to the defendant to be a witness, except through counsel or in the presence of counsel. Your client signed those conditions of release counsel, before the district court was quite clear that that was not being challenged. How under your analysis, would those conditions of release not be invalid? You’re taking a position that that those conditions of release violate the First Amendment?”
Another damning interaction came when the judge told Sauer, “I’m really trying to understand your legal test. If he were to pick up the phone and call someone that is known to him to be a witness, prospective witness in this case, and speak with that person without counsel present. Would, could, would that violate the restriction?”
“Would the First Amendment protect that communication under your test?” she asked.
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“We have not contended –” Sauer replied.
“That is not what I am asking,” she said loudly, almost shouting. “I’m asking you to apply the test that you propose to us because we have to write a test that can be applied, and we have to know how it’s going to be applied. So I’m asking your position, your legal position, would that phone call be protected by the First Amendment or not?”
After some back-and-forth, the judge continued to build her line of questioning.
“Now for next hypothetical,” she said, “he gets on the phone and he says … ‘you’ve always been someone with courage, backbone. A loyalist, a patriot, and, you know, loyalists and patriots don’t talk to prosecutors in my case,’ and hangs up.”
“Okay, if you said that, I think that would be a clear violation of the terms of release,” Sauer agreed.
“Okay,” the judge continued. So [Trump] gets on a stage somewhere, or on social media and says that exact same thing… A public figure is being bothered by the prosecutor. People who are loyal, honest, patriots don’t talk to the government.”
The judge after Sauer insisted Trump had not said that demanded he “answer the question. I’m not suggesting he has said this to be clear. For the record. This is a hypothetical question.”
“Because he’s not speaking directly to the witness. He’s doing this on social media or at a town hall or a news interview, he says that. Does it violate the First Amendment to say that’s prohibited?”
Each side was originally allowed 20 minutes. The court is still hearing arguments 90 minutes in.
Editor’s note: This is a rush transcript.
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Donald Trump’s Friday morning claim Manhattan’s Criminal Courts Building is “heavily guarded” so his supporters cannot attend his trial was torched by a top CNN anchor. The ex-president, facing 34 felony charges in New York, had been urging his followers to show up and protest on the courthouse steps, but few have.
“I’m at the heavily guarded Courthouse. Security is that of Fort Knox, all so that MAGA will not be able to attend this trial, presided over by a highly conflicted pawn of the Democrat Party. It is a sight to behold! Getting ready to do my Courthouse presser. Two minutes!” Trump wrote Friday morning on his Truth Social account.
CNN’s Kaitlan Collins supplied a different view.
“Again, the courthouse is open the public. The park outside, where a handful of his supporters have gathered on trials days, is easily accessible,” she wrote minutes after his post.
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Trump has tried to rile up his followers to come out and make a strong showing.
On Monday Trump urged his supporters to “rally behind MAGA” and “go out and peacefully protest” at courthouses across the country, while complaining that “people who truly LOVE our Country, and want to MAKE AMERICA GREAT AGAIN, are not allowed to ‘Peacefully Protest,’ and are rudely and systematically shut down and ushered off to far away ‘holding areas,’ essentially denying them their Constitutional Rights.”
On Wednesday Trump claimed, “The Courthouse area in Lower Manhattan is in a COMPLETE LOCKDOWN mode, not for reasons of safety, but because they don’t want any of the thousands of MAGA supporters to be present. If they did the same thing at Columbia, and other locations, there would be no problem with the protesters!”
After detailing several of his false claims about security measures prohibiting his followers from being able to show their support and protest, CNN published a fact-check on Wednesday:
“Trump’s claims are all false. The police have not turned away ‘thousands of people’ from the courthouse during his trial; only a handful of Trump supporters have shown up to demonstrate near the building,” CNN reported.
“And while there are various security measures in place in the area, including some street closures enforced by police officers and barricades, it’s not true that ‘for blocks you can’t get near this courthouse.’ In reality, the designated protest zone for the trial is at a park directly across the street from the courthouse – and, in addition, people are permitted to drive right up to the front of the courthouse and walk into the building, which remains open to the public. If people show up early enough in the morning, they can even get into the trial courtroom itself or the overflow room that shows near-live video of the proceedings.”
READ MORE: Justices’ Views on Trump Immunity Stun Experts: ‘Watching the Constitution Be Rewritten’
Democratic U.S. Rep. Alexandria Ocasio-Cortez is responding to Thursday’s U.S. Supreme Court hearing on Donald Trump’s claim he has “absolute immunity” from criminal prosecution because he was a U.S. president, and she delivered a strong warning in response.
Trump’s attorney argued before the nation’s highest court that the ex-president could have ordered the assassination of a political rival and not face criminal prosecution unless he was first impeached by the House of Representatives and then convicted by the Senate.
But even then, Trump attorney John Sauer argued, if assassinating his political rival were done as an “official act,” he would be automatically immune from all prosecution.
Justice Sonia Sotomayor, presenting the hypothetical, expressed, “there are some things that are so fundamentally evil that they have to be protected against.”
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“If the president decides that his rival is a corrupt person, and he orders the military, or orders someone to assassinate him, is that within his official acts for which he can get immunity?” she asked.
“It would depend on the hypothetical, but we can see that could well be an official act,” Trump attorney Sauer quickly replied.
SCOTUS Justice Sonia Sotomayor: “If the president … orders someone to assassinate [a rival], is that within his official acts for which he can get immunity?”
Trump attorney D. John Sauer: “It would depend on the hypothetical, but we can see that could well be an official act.” pic.twitter.com/RddEEYIUrR
— The Recount (@therecount) April 25, 2024
Sauer later claimed that if a president ordered the U.S. military to wage a coup, he could also be immune from prosecution, again, if it were an “official act.”
The Atlantic’s Tom Nichols, a retired U.S. Naval War College professor and an expert on Russia, nuclear weapons, and national security affairs, was quick to poke a large hole in that hypothetical.
“If the president suspends the Senate, you can’t prosecute him because it’s not an official act until the Senate impeaches …. Uh oh,” he declared.
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U.S. Rep. Alexandria Ocasio-Cortez blasted the Trump team.
“The assassination of political rivals as an official act,” the New York Democrat wrote.
“Understand what the Trump team is arguing for here. Take it seriously and at face value,” she said, issuing a warning: “This is not a game.”
Marc Elias, who has been an attorney to top Democrats and the Democratic National Committee, remarked, “I am in shock that a lawyer stood in the U.S Supreme Court and said that a president could assassinate his political opponent and it would be immune as ‘an official act.’ I am in despair that several Justices seemed to think this answer made perfect sense.”
CNN legal analyst Norm Eisen, a former U.S. Ambassador and White House Special Counsel for Ethics and Government Reform under President Barack Obama, boiled it down: “Trump is seeking dictatorial powers.”
Watch the video above or at this link.
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Legal experts appeared somewhat pleased during the first half of the Supreme Court’s historic hearing on Donald Trump’s claim he has “absolute immunity” from criminal prosecution because he was the President of the United States, as the justice appeared unwilling to accept that claim, but were stunned later when the right-wing justices questioned the U.S. Dept. of Justice’s attorney. Many experts are suggesting the ex-president may have won at least a part of the day, and some are expressing concern about the future of American democracy.
“Former President Trump seems likely to win at least a partial victory from the Supreme Court in his effort to avoid prosecution for his role in Jan. 6,” Axios reports. “A definitive ruling against Trump — a clear rejection of his theory of immunity that would allow his Jan. 6 trial to promptly resume — seemed to be the least likely outcome.”
The most likely outcome “might be for the high court to punt, perhaps kicking the case back to lower courts for more nuanced hearings. That would still be a victory for Trump, who has sought first and foremost to delay a trial in the Jan. 6 case until after Inauguration Day in 2025.”
Slate’s Mark Joseph Stern, who covers the courts and the law, noted: “This did NOT go very well [for Special Counsel] Jack Smith’s team. Thomas, Alito, and Kavanaugh think Trump’s Jan. 6 prosecution is unconstitutional. Maybe Gorsuch too. Roberts is skeptical of the charges. Barrett is more amenable to Smith but still wants some immunity.”
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Civil rights attorney and Tufts University professor Matthew Segal, responding to Stern’s remarks, commented: “If this is true, and if Trump becomes president again, there is likely no limit to the harm he’d be willing to cause — to the country, and to specific individuals — under the aegis of this immunity.”
Noted foreign policy, national security and political affairs analyst and commentator David Rothkopf observed: “Feels like the court is leaning toward creating new immunity protections for a president. It’s amazing. We’re watching the Constitution be rewritten in front of our eyes in real time.”
“Frog in boiling water alert,” warned Ian Bassin, a former Associate White House Counsel under President Barack Obama. “Who could have imagined 8 years ago that in the Trump era the Supreme Court would be considering whether a president should be above the law for assassinating opponents or ordering a military coup and that *at least* four justices might agree.”
NYU professor of law Melissa Murray responded to Bassin: “We are normalizing authoritarianism.”
Trump’s attorney, John Sauer, argued before the Supreme Court justices that if Trump had a political rival assassinated, he could only be prosecuted if he had first been impeach by the U.S. House of Representatives then convicted by the U.S. Senate.
During oral arguments Thursday, MSNBC host Chris Hayes commented on social media, “Something that drives me a little insane, I’ll admit, is that Trump’s OWN LAWYERS at his impeachment told the Senators to vote not to convict him BECAUSE he could be prosecuted if it came to that. Now they’re arguing that the only way he could be prosecuted is if they convicted.”
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Attorney and former FBI agent Asha Rangappa warned, “It’s worth highlighting that Trump’s lawyers are setting up another argument for a second Trump presidency: Criminal laws don’t apply to the President unless they specifically say so…this lays the groundwork for saying (in the future) he can’t be impeached for conduct he can’t be prosecuted for.”
But NYU and Harvard professor of law Ryan Goodman shared a different perspective.
“Due to Trump attorney’s concessions in Supreme Court oral argument, there’s now a very clear path for DOJ’s case to go forward. It’d be a travesty for Justices to delay matters further. Justice Amy Coney Barrett got Trump attorney to concede core allegations are private acts.”
Due to Trump attorney’s concessions in Supreme Court oral argument, there’s now a very clear path for DOJ’s case to go forward.
It’d be a travesty for Justices to delay matters further.
Justice Amy Coney Barrett got Trump attorney to concede core allegations are private acts.⬇️ pic.twitter.com/F3qXi47ZT6
— Ryan Goodman (@rgoodlaw) April 25, 2024
NYU professor of history Ruth Ben-Ghiat, an expert scholar on authoritarians, fascism, and democracy concluded, “Folks, whatever the Court does, having this case heard and the idea of having immunity for a military coup taken seriously by being debated is a big victory in the information war that MAGA and allies wage alongside legal battles. Authoritarians specialize in normalizing extreme ideas and and involves giving them a respected platform.”
The Nation’s justice correspondent Elie Mystal offered up a prediction: “Court doesn’t come back till May 9th which will be a decision day. But I think they won’t decide *this* case until July 3rd for max delay. And that decision will be 5-4 to remand the case back to DC, for additional delay.”
Watch the video above or at this link.
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