Don’t be surprised if Donald Trump’s gag order in the federal election interference case is reimposed but narrowed in some way, if Monday’s oral argument is any indication. While the three-judge federal appeals court panel in Washington sounded frustrated with the presentation by Trump’s lawyer, it didn’t seem fully satisfied with the government’s approach, either.
Trump lawyer John Sauer didn’t want to give an inch during his argument that restrictions on his client violated political speech rights under the First Amendment as Trump runs for office again. But Sauer’s stubborn position left it unclear what a court could prohibit under a gag order that isn’t already illegal.
Yet, the judges didn’t sound completely assured by the argument from Justice Department lawyer Cecil VanDevender, including over what exactly Trump can say about special counsel Jack Smith, his staff and witnesses in the case.
As often happens in appellate proceedings, the panel was looking for where to draw the line, mindful of both the First Amendment and the considerations that led U.S. District Judge Tanya Chutkan to impose the order following Trump’s history of menacing comments ahead of his scheduled March trial. He has pleaded not guilty to the indictment that accuses him of criminally plotting to overturn the 2020 election he lost to President Joe Biden. All three judges on the appellate panel were appointed by Democratic presidents — one by Biden and two by Barack Obama.
If the panel is inclined to reimpose the order but in a more limited way, one open question is whether the judges specify the contours of their preferred order in their forthcoming opinion, or whether they send the matter back to Chutkan to formulate a new order based on the panel’s ruling. Whatever the panel decides, further appeals to the Supreme Court may come. In the meantime, the gag order in Washington is on hold, as is the order limiting Trump’s statements about court staff in his ongoing civil fraud trial in New York. Subscribe to the Deadline: Legal newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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