“He has to talk ‘Miss Manners’ while everyone is throwing targets at him?” Millett said skeptically during a two-hour oral argument at the federal courthouse in Washington. “It would be really difficult in a debate, when everyone is coming at you at full throttle. Your lawyers should have little things written down that you can say.
“That’s not how I want my kids to talk,” Millett added of Trump’s rhetoric, “but that’s really not the point.”
Another appeals judge, Nina Pillard, suggested at least five times that the trial judge’s order went too far in appearing to prohibit Trump from making hostile comments about people in the public eye who could be witnesses in the case.
Pillard said she doubts that figures such as former Vice President Mike Pence, former Attorney General Bill Barr or former Chairman of the Joint Chiefs of Staff Mark Milley are likely to change their narratives in based on Trump’s invectives – or even based on more direct threats or attacks that might arise from them.
“I would assume their testimony would not be affected,” said Pillard, also an Obama appointee.
Despite the panel’s concerns about the scope of the silence order, imposed last month by U.S. District Judge Tanya Chutkan, the appeals judges nonetheless appeared willing to approve a more restrictive version, agreeing prosecutors that Trump should not have carte blanche to make statements. this could intimidate witnesses or threaten the integrity of the proceedings.
“We have to use a careful scalpel here,” Millett said.
It is not clear whether the appeals court panel intends to rewrite the silence order itself or send it back to Chutkan with new instructions. The timetable for action is also unclear. The commission took up the case urgently, but it often takes weeks or even months for an appeals court to rule on complex legal issues. And the panel probably doesn’t have the final say: The losing party can appeal the panel’s decision to the full court of appeals or the Supreme Court.
Millett and Pillard both suggested that Trump’s lawyers placed too little emphasis on Chutkan’s responsibility to protect the trial. And the third appeals panel judge, Bradley Garcia, appointed by President Joe Biden, noted that Chutkan issued the silence order after holding a detailed hearing on the matter and gathering numerous facts to support his decision .
Chutkan issued the order on October 16, but it is not currently in effect because the appeals court suspended it while it reviews the case.
Chutkan imposed the silence to contain Trump’s inflammatory rhetoric, saying his attacks on prosecutors and potential witnesses posed a threat to the “administration of justice” and risked fueling threats against those involved in the affair. Trump is scheduled to go on trial March 4 on charges of committing multiple plots to derail the transfer of power in an attempt to remain president despite losing the 2020 election.
On Monday, in a federal courthouse just steps from the Capitol, special counsel Jack Smith — under the guard of deputy U.S. marshals — watched as one of his prosecutors, Cecil VanDevender, argued for reinstating the order silence.
In his order, Chutkan prohibited Trump from “targeting” potential witnesses or making any reference to the subject of their testimony. It also barred Trump from attacking prosecutors by name, while allowing him to launch broader attacks against the Biden administration and the Justice Department. And the Obama-appointed judge also barred Trump from attacking court staff.
After the panel suspended the silence order while it heard Trump’s appeal, Trump used the interim to resume his attacks on Smith’s team — and even on members of Smith’s family – as well as against potential witnesses.
Pillard appeared to agree with Trump’s lawyers’ arguments that the language in the silence order prohibiting their client from “targeting” prosecutors, jurors and witnesses was vague.
“‘Targeting’ raises a bit of vagueness,” she said.
The appeals court judges sharply criticized Trump’s position that virtually any restriction on his ability to publicly discuss the case would be a violation of his First Amendment free speech rights. But they sometimes seemed equally disconcerted by prosecutors’ efforts to draw lines between which aspects of Trump’s speech were acceptable and which were not.
At one point, to the judges’ dismay, VanDevender said that Trump’s description of a potential witness as a “liar” would be unacceptable, but he could describe the same witness as someone who tells “untruths.”
“I know the line is a little fine,” VanDevender said.
The justices also seemed perplexed by the order’s ban on statements aimed at Smith himself — or even the line prosecutors who work for him. Many of these lawyers may be public figures in their own right and represent the government in the same way as Smith, they noted.
In an apparent concession, VanDevender told the justices that Smith was not asking to be personally protected from Trump’s criticism.
The justices did not dwell on whether it was appropriate to consider Trump’s political role when making decisions related to his criminal case, but Millett pressed Trump’s lawyer, John Sauer , about whether he would make these arguments if Trump were not a candidate. for president.
“It’s still unconstitutional,” Sauer said of the gag order. “The campaign adds an additional, but still powerful, reason. »
On several occasions during Monday’s proceedings in the large courtroom, Millett raised his voice in frustration with attorneys on both sides. She also briefly buried her head in her hands at the end of the hearing.
Prosecutors presented the silence as an urgent constraint on Trump’s ability to intimidate or threaten witnesses. They say he knowingly incites violent supporters to act against his perceived adversaries and has openly tried to silence key witnesses like his former White House chief of staff, Mark Meadows — messages that could also chill the testimony of less powerful figures.
They cited his August social media post — “If you sue me, I’ll come after you” — as well as his targeted attacks on Meadows, Pence and Milley, all potential witnesses in the case. In September, Trump accused Milley of treason and said he would have been put to death in an earlier era.
Trump also repeatedly called Smith “deranged” and attacked some prosecutors in his office.
Chutkan’s directive is separate from a gag order that a New York state judge issued against Trump last month, barring him from publicly commenting on the judge’s top lawyer or other court staff . That judge, Arthur Engoron, oversaw a lengthy trial in a civil case filed by the New York attorney general targeting Trump’s business empire over allegations of widespread fraud.
Last week, a state appeals court judge temporarily lifted the silence order. Trump responded by quickly using his social media site to launch a new salvo against Engoron and its employee.