Court seems inclined to keep restricting Trump’s trial speech but gag order could be narrowed
- Judges are weighing whether to put back in place an order that barred Trump from inflammatory comments against prosecutors, witnesses and court staff
- The former US president’s legal team has signalled that it will fight any restrictions to the Supreme Court
A federal appeal court appeared inclined on Monday to reimpose at least some restrictions on Donald Trump’s speech in his landmark election subversion case. But the judges wrestled with how to craft a gag order that does not infringe on the former president’s free speech rights or prevent him from defending himself on the campaign trail.
The judges raised a litany of hypothetical scenarios that could arise in the months ahead as they considered how to fashion a balance between an order that protects Trump’s First Amendment rights and the need to protect “the criminal trial process and its integrity and its truth finding function.”
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“There’s a balance that has to be undertaken here, and it’s a very difficult balance in this context,” Judge Patricia Millett told Cecil VanDevender, a lawyer with special counsel Jack Smith’s office. “But we have to use a careful scalpel here and not step into really sort of skewing the political arena, don’t we?”
VanDevender replied that he agreed but said he believed that the gag order imposed last month does strike the appropriate balance
No matter the outcome, the stakes are high given the volume and intensity of Trump’s public comments about the case, the massive public platform he holds on social media and the campaign trail, and the limited legal precedent for restricting speech of political candidates – let alone for the White House – who are criminal defendants.