Takeaways from the tense appeals court hearing over the Trump gag order in federal election subversion case

Analysis by Marshall Cohen and Devan Cole, CNN

(CNN) — A federal appeals panel appears inclined to restore the limited gag order in former President Donald Trump’s federal election subversion case, but may loosen some restrictions so he can more directly criticize special counsel Jack Smith.

A three-judge panel of the DC US Circuit Court of Appeals heard oral arguments Monday in the closely watched case, which stems from Trump’s attempts to overturn the 2020 election and obstruct the lawful transfer of power. He pleaded not guilty.

None of the three judges embraced Trump’s claims that the gag order should be wiped away for good because it is a “categorically unprecedented” violation of his free speech rights. Yet they also posed sharp questions to prosecutors as they tried to find the boundary of where intense campaign trail rhetoric crosses the line of undermining a criminal case.

“We certainly want to make sure that the criminal trial process and its integrity and its truth-finding function are protected, but we ought to use a careful scalpel here and not step into really sort of skewing the political arena,” Circuit Judge Patricia Millett said.

The limited gag order from District Judge Tanya Chutkan – which was temporarily frozen by the appeals panel when they agreed to hear the case – restricts Trump’s ability to directly attack Smith, members of his team, court staff or potential trial witnesses. He is allowed to criticize the Justice Department, proclaim his innocence and argue that the case is “politically motivated.”

The appellate judges, who are all Democratic appointees, heard the case on an expedited schedule and are expected to issue a ruling soon, but the timing is unclear.

Here are key takeaways from the hearing:

Trump political rhetoric can’t ‘derail’ the case, judge says

Millett repeatedly challenged Trump attorney D. John Sauer, saying it was important to draw a distinction between purely political campaign rhetoric and speech intended to subvert the legal process.

“First of all, we’re not shutting down everyone who speaks,” Millett said. “This is only affecting the speech temporarily during a criminal trial process by someone who has been indicted as a felon. … No one here is threatening the First Amendment broadly.”

Sauer argued that the restrictions on all criminal defendants against illegal speech like blatant witness tampering were more than enough to protect the integrity of the case. He said the gag order infringed on Trump’s “core political speech.”

Cutting him off, Millett said: “Labeling it ‘core political speech’ begs the question of whether it is in fact political speech or whether it is political speech aimed at derailing or corrupting the criminal justice process. You can’t simply label it that and conclude your balancing tests that way. We have to balance.”

Sauer responded by arguing that the speech potentially being restricted by the gag order is “inextricably entwined with the issues that are being publicly debated in the context of the campaign.”

But Trump should have some leeway

Later in the hearing, Millett and fellow DC Circuit Judge Cornelia Pillard both signaled that they think the existing gag order could be loosened to allow Trump to levy additional public attacks against Smith and his team of prosecutors.

Not that they think the attacks are well-founded, but that Trump should have the right to defend himself.

“It can’t be that he can’t mention Mr. Smith,” because most Americans have heard about the case in the context that it was initiated by Smith’s team. That has become the shorthand, Pillard noted.

“Surely he has a thick enough skin,” Pillard said of the special counsel.

Trump can’t be forced under a gag order to “speak Miss Manners while everyone else is throwing targets” at him during a theoretical GOP presidential primary debate, Millet added.

The names of Smith and the other prosecutors are all “part of the public record,” she said.

The current gag order prevents Trump from “making any public statements … that target the special counsel… or his staff.” In speeches and social media posts, Trump often says Smith is “deranged” and a “lunatic.”

Trump has criticized Smith, appointed by Attorney General Merrick Garland, at nearly every turn. Earlier this month, he called the special counsel a “disgrace to America.”

Trump attorney pressed on hypothetical threats against Pence and witnesses

Millett posed sharp questions about the potential of Trump to intimidate witnesses while he is campaigning for the 2024 GOP presidential nomination that hit on a well-documented pattern of Trump trying to threaten, discredit or cajole witnesses through public rhetoric.

She raised the hypothetical of Trump saying at a rally that a specific person is being “bothered” by prosecutors and that he thinks people who are “faithful” and “loyal” shouldn’t cooperate with prosecutors.

In response, Sauer claimed Trump hasn’t done that in this case.

Millet asked if it would acceptable for Trump to post: “Mike Pence can still do the right thing if he says the right stuff tomorrow,” on the eve of his testimony at the trial. (The witness list hasn’t been announced yet, but Pence is clearly a major part of the case.)

Sauer said this type of speech could only be restricted if there was a “compelling evidentiary showing” of “an actual threat” against Pence.

A significant portion of Smith’s case against Trump revolves around Trump’s efforts to pressure Pence to abuse his position overseeing the Electoral College certification to block the lawful transfer of power after the 2020 election.

“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,” special counsel prosecutor Cecil VanDevender argued.

Concerns about jurors being doxxed

At several different points, Millett expressed concern about Trump potentially revealing the personal information of jurors in his trial and how his speech might lead some of his followers to similarly attack jurors on the Internet.

The potential issue of online threats being directed toward jurors as a result of Trump’s speech could factor into the judges’ final decision on the gag order. Prosecutors have argued that those kinds of threats could prejudice the jury in the case.

“If the district court entered an order restricting a criminal defendant from making comments about individual jurors, and the defendant were a candidate for public office, would that order violate the First Amendment?” Millett asked Sauer.

“It would depend on the context, but I do concede there would be facts that could justify an order like that,” Sauer said, prompting the judge to appear somewhat puzzled by his response.

“It would depend on the context?” she asked.

Millett returned to her concerns later in the hearing, this time pressing the special counsel’s office if it was possible to proactively protect jurors from online doxxing by Trump “loyalists” acting in response to the former president’s speech.

“Is there any way, preventatively, to protect someone’s technology? Like let’s say I’m a prospective juror, can I be protected technologically from like doxxing?” she said.

“Because we do have – as you appreciate – the problem of speech by the defendant, and then it has the knock-on effect with the loyalists’ zeal, and that’s then, you know, what causes direct efforts at threatening and harassing individuals,” the judge explained.

Assistant special counsel Cecil VanDevender said he wasn’t aware of any technological tools that would work to mitigate the issue “at the source.”

“If they exist, I think they are not widely used and not easy to incorporate, particularly for every witness and every potential juror,” he added.

Chutkan death threat looms large

A death threat issued against Chutkan in August by a Texas woman loomed large over the hearing, with two judges bringing up the incident as Sauer, Trump’s attorney, was pressed on whether his client’s speech can lead to real world actions by his supporters.

“What the district court is finding is we have a past pattern: When the defendant speaks on this subject, threats follow,” said Circuit Judge Brad Garcia. “Why isn’t the district court justified in taking a proactive measure? Not waiting for more and more threats to actually occur and stepping in to protect the integrity of the trial?”

Sauer countered that there is “an evidentiary burden here,” and argued that despite Trump’s online comments on the case, prosecutors “haven’t come forward with a single threat that’s even arguably inspired by any of his social media posts.”

But Garcia and Millett quickly pushed back, with them both bringing up Abigail Jo Shry, who was charged in August after making the threat against Chutkan.

“The day after (Trump) said, ‘If you come after me, I’m coming after you,’ that threat issued,” Millett said.

Shortly after Smith unveiled the federal charges against Trump, Shry called Chutkan’s chambers and left a voicemail message threatening to “kill anyone who went after former President Trump,” according to a criminal complaint.

The death threats also allegedly included racist comments against Chutkan, who is Black. Prosecutors said in court filings that Shry called the judge a “stupid slave n***er” in the voicemail.

Sauer attempted to distance Shry from Trump’s comments, saying that in her case, “there’s no evidence of any reading of social media.”

“That particular threatener is a – unemployed, you know, mentally unstable, heavy alcoholic who sits on her couch drinking beer all day, according to her father. Never leaves the apartment, watches the news, not reads things on social media, watches the news on TV, gets angry about it and makes angry, threatening calls,” he said.

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