Trump’s lawyer argues the order violates free speech while judges say his rhetoric could threaten the integrity of his upcoming trial.
United States appeals court judges have signalled scepticism towards Donald Trump’s bid to overturn a gag order imposed on the former president in a federal criminal case in which he is accused of illegally trying to overturn his 2020 election defeat.
It forbids Trump from publicly maligning any prosecutors, potential witnesses or court employees involved in the case.
Trump lawyer D John Sauer argued on Monday that the order violates the US Constitution’s First Amendment right to freedom of speech while judges on the US Court of Appeals for the District of Columbia asked whether Trump’s charged rhetoric would threaten the integrity of his upcoming trial.
“I don’t hear you giving any weight at all to the interests in a fair trial,” Judge Cornelia Pillard told Sauer.
Pillard is one of three judges who heard Trump’s appeal of the gag order imposed by US District Court Judge Tanya Chutkan, who is overseeing the case.
Chutkan ruled that public statements by Trump or his lawyers criticising prosecutors, court staff and potential witnesses could influence witnesses and lead to threats against people involved in the case.
But Chutkan permitted Trump to “criticize the Justice Department, President Biden and herself. She also allowed him to maintain that the prosecution itself was a partisan retaliation against him,” The New York Times reported.
“The order is unprecedented, and it sets a terrible precedent on future restrictions on core political speech,” Sauer said during the two-hour hearing.
Trump, the frontrunner for the Republican nomination to challenge Democratic President Joe Biden in the 2024 election, has assailed officials involved in a range of criminal and civil cases he faces. He has called US Special Counsel Jack Smith, who brought the federal election-related charges, a “deranged lunatic” and a “thug”.
Trump’s remarks about prosecutors and witnesses have pit his right to freedom of speech against the need for a fair trial next year.
The gag order has been suspended during Trump’s appeal. Trump has pleaded not guilty in the case as well as all three other criminal cases.
The judges asked Department of Justice lawyer Cecil VanDevender whether the order was written too broadly.
“We have to use a careful scalpel here,” said Judge Patricia Millett, a Democratic judicial appointee like the other two on the panel.
VanDevender said the order still allows Trump to make broad arguments about the integrity of the case.
“He can say, ‘This is a politically motivated prosecution brought by my political opponent,’ ‘The Department of Justice is corrupt,’ and ‘I will be vindicated at trial,’ – all of that stuff,” VanDevender said.
The judges did not indicate when they will rule.
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