Former President Donald Trump’s appeal against Judge Chutkan’s partial gag order began with fireworks judges creating a series of Hypothetical events to determine the extent of the order.
Trump’s lawyer had already argued in a 37-page filing that the gag order, which bars Trump from attacking potential witnesses and prosecutors, relies on hearsay media reports and “naked speculations” instead of evidence. Trump’s lawyers suggested that the gag order would interfere in their client’s campaign while adding that Chutkan’s court had no business inserting itself into the Presidential election.
On Monday, a U.S. Court of Appeals Court panel of judges asked several questions while picking the gag order apart in the process. The three judges overseeing the case asked prosecutors a series of questions, including who Trump could go after and what the former president is allowed to say.
Judge Patricia Millet asked if Trump could call potential witnesses a slimy liar. Millet created a hypothetical event where Trump’s 2024 Republican political rivals went after him using his recent indictments. Millets asked Cecil VanDevender, who argued on behalf of government prosecutors, if Trump could respond by telling his rivals that the indictments were political vendetta by prosecutors doing President Joe Biden’s biddings. Millet maintained that the gag order would force Trump to sit quietly and watch while his political opponents attack him.
“He has to speak Miss Manners while everyone else is throwing targets at him?” Millet asked. “It would be really hard in a debate when everyone else is going at you full bore. Your attorneys would have to have scripted little things you can say.”
BREAKING: Federal judges on the DC Appeals Court blast Jack Smith and Tanya Chutkan's gag order on Trump
“He has to speak ‘Miss Manners’ while everyone else is throwing targets at him?” Judge Patricia Millett, an Obama appointee said. “It would be really hard in a debate when… pic.twitter.com/ecDHx3fd3e
— George (@BehizyTweets) November 20, 2023
Millet also pressed prosecutors on the issue of balancing their case alongside the constitutional protection of Trump’s political speech.
I’m asking your position — which doesn’t seem to give much balance at all to the First Amendment’s vigorous protection of political speech and the notion that high-profile public figures or governmental officials who’ve taken on enormous responsibility like prosecutors can’t stand up to some inflammatory language,” Millett said. “It seems to me to contradict Supreme Court precedent and seems to me sort of a very troubling lack of balance on a free speech side on the part of prosecution in this case.”
— America First Legal (@America1stLegal) November 21, 2023
The current gag order prevents Trump from making any public statements targetiing Special Counsel Jack Smith or his staff. Judge Cornelia Pillard noted that most Americans already know who Smith is and that the identities of all the prosecutors in the case are all public records.
“It can’t be that he can’t mention Mr. Smith,” Pillard said adding that most Americans have heard about the case in the context that it was filed by Smith’s team.
On whether Trump could attack Smith, Pillard suggested that Smith should be able to take Trump’s attack
“Surely he has a thick enough skin,” Pillard said of Smith.