WASHINGTON — A federal appeals court appeared inclined 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 doesn’t infringe on the former president’s free speech rights or prevent him from defending himself on the campaign trail.
The three judges on the panel asked skeptical and at times aggressive questions of attorneys on both sides while weighing whether to put back in place an order from a trial judge that barred Trump from inflammatory comments against prosecutors, potential witnesses and court staff.
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.”
“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.
The court did not immediately rule but its questions left open the possibility that it might narrow the gag order, setting parameters on what Trump, as both a criminal defendant and the leading candidate for the 2024 Republican presidential nomination, can and cannot say as the trial date nears. Trump’s team has signaled that it will fight any restrictions to the Supreme Court.
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.