It has come to light that it was a rough day in court for former President Donald Trump’s legal team on Monday as they tried to persuade three appeals court judges to lift the gag order preventing him from publicly disparaging those involved in his election interference case via Media Ite.
U.S. District Judge Tanya Chutkan placed a limited gag order on the former president in October after he lashed out on social media against Special Counsel Jack Smith, calling him a “thug” and “deranged.” Chutkan called Trump’s words “language that presents a danger to the administration of justice.”
MSNBC’s Katy Tur set up clips of the exchanges over the gag rule.
“Jack Smith’s team wants it, saying it’s necessary to keep people safe. Donald Trump’s team is appealing it, saying it violates his free speech and ability to campaign. And while the D.C. Circuit Court of Appeals has yet to rule, we did get some hints.
Take this exchange, where Judge [Patricia] Millet presses Donald Trump’s team on whether their arguments that it’s unconstitutional to limit the political speech of a candidate would stand if Donald Trump were not running for office.”
JUDGE: Would your position be any different a year ago?
TRUMP LAWYER: I think the gag order would still be unconstitutional.
JUDGE: Would your position be any different?
TRUMP LAWYER: I don’t see how it would be different.
JUDGE: The fact that we have a campaign going on does not matter. What matters to you, and this is still political speech, which gets very high protection no doubt.
TRUMP LAWYER: I wouldn’t put it that way. I think the campaign, in other words, we have a whole —
JUDGE: You said your position would be no different if it were a year ago!
“There was this exchange, where Trump’s team was asked to clarify where they would draw the line regarding speaking to or about witnesses, as in, when is it okay to use free speech to call out a witness or interact with a witness, and when is it not okay,” Tur said.
JUDGE: If he were to pick up the phone and call someone that is known to him to be a witness, a prospective witness in this case, and speak with that person without counsel present, would that — that would violate the restriction undoubtedly. Would the First Amendment protect that communication under your test?
TRUMP LAWYER: We have not contended that —
JUDGE: I — That’s not what I am asking! I’m asking you to apply the test to your proposal — because we have to write a test that can be applied. And we have to know how it’s going to be applied. So, I’m asking your position, your legal position: Would that phone call be protected by the First Amendment or not?
LAWYER: Is it a phone where what’s said is “Happy Thanksgiving,” or a phone call that says —
JUDGE: I’m not telling you why! Because the order, the pre-release, and the release restriction don’t care about the content!