Trump lawyers face skeptical judges in bid to nix gag order

Donald Trump attorney John Sauer faced tough going during oral arguments Monday as he tried to convince a federal appeals court to nix the partial gag order imposed on the former president in his 2020 election subversion case.

The three judges on the appeals panel, all appointees of Democratic presidents, didn’t immediately rule on whether to scrap the order and adjourned until Nov. 30.

But their line of questioning suggested they were leery of nixing the gag entirely.

Sauer premised his argument on Trump’s First Amendment rights while underscoring how the order could affect his 2024 presidential campaign.

“The order is unprecedented and it sets a terrible precedent for future restrictions on core political speech,” the attorney said in his opening remarks.

“Would your position be any different if it were a year ago?” Circuit Judge Patricia Millett, a Barack Obama appointee, pressed Sauer at one point.

“I think the gag order would still be unconstitutional,” he replied.

“OK, so the fact that we have a campaign going on does not matter. What matters to you — and this is still political speech — which gets very high protection, no doubt,” Millett responded.

US District Judge Tanya Chutkan initially slapped a gag order on Trump on Oct. 17, restricting the former president from making statements that “target” key players in his trial.

Under the “narrowly tailored” gag order, Trump is permitted to broadly criticize the Justice Department and Washington, DC.

But he can’t “target” special counsel Jack Smith or his staff, court personnel, or “any reasonably foreseeable witness or the substance of their testimony.”

“This is not about whether I like the language Mr. Trump uses,” Chutkan previously explained. “This is about language that presents a danger to the administration of justice.”

Smith’s office had implored Chutkan to impose a gag order and cited several social media posts, including one in which the former president said, “IF YOU GO AFTER ME, I’M COMING AFTER YOU!”

Chutkan briefly put the gag order on hold when Trump’s team filed an appeal, but then reimposed it in late October after the former president lashed out at Smith at least three times during the pause.

That social media post flagged by Smith’s team was featured in multiple questions during the appeal hearing Monday.

“From the day after the indictment, defendant sent out on social media, ‘If you go after me, I’m coming after you.’ Can you say that’s protected speech?” Millet later asked.

“Absolutely,” Sauer replied.

“If he posts it with a picture of the district court judge,” she said.

“I’d have to look at case law,” he replied. “That would be more problematic for sure.”

“I don’t hear you giving any weight at all to the interest in a fair trial,” she later said.

When it was assistant special counsel Cecil VanDevender’s turn to defend the gag order, the judges appeared a little less skeptical, but harped on the scope of Chutkan’s prohibition.

“The notion that high-profile public figures or governmental officials who taken on enormous responsibility like prosecutors can’t stand up to some inflammatory language seems to me to contradict Supreme Court precedent,” Millet said at one point.

“It’s very clear that when the defendant engaged in repeated inflammatory personal attacks on someone, there is a causal link between that person receiving harassment threats and intimidation,” VanDevender replied.

VanDevender went on to argue that “the district court correctly found that the defendant’s well-established practice of using his public platform to target his adversaries, including trial participants in this case, poses a significant and immediate risk to the fairness and integrity of these proceedings.”

Chutkan has faced death threats, including from Texas woman Abigail Jo Shry, who was charged back in August.

Shry left a voicemail message warning she would “kill anyone who went after former President Trump.”

Millett noted that threat came after Trump’s notorious post.

Other messages Chutkan received include one in which she was called a “stupid slave n—er,” per court filings.

Several times throughout her line of questioning to VanDevender, Millett appeared to wrestle with how the gag order applies to the former president’s criticisms of public figures in instances that don’t appear connected to the election case.

Millet was joined on the panel by another Obama appointee, Judge Nina Pillard, and Judge Bradley Garcia, appointed by President Biden.

Trump has received support in his appeal from the left-leaning American Civil Liberties Union, the conservative group America First Legal, and a handful of Republican state attorneys general who submitted amicus filings arguing for the order to be scrapped.