Three Appellate Judges, Two Hours, and a First Amendment Conundrum

Editor’s note: The following is a dispatch from a hearing held on Nov. 20, the latest episode in Lawfare’s series of dispatches on the criminal cases against former President Donald Trump. 

We’re on the sixth and top floor of E. Barrett Prettyman U.S. Courthouse in the Ceremonial Courtroom, Courtroom 20, where the wall clock is stuck on 12. The room is wide and the ceiling is high, and white marble figures of Hammurabi, Moses, Solon, and Justinian are mounted on the marbled wall above the judges’ bench. Even though the room is filled with 90 people today, it doesn’t feel crowded. 

At 9:32 a.m., Judges Cornelia Pillard, Patricia Millett, and Bradley Garcia of the U.S. Court of Appeals for the D.C. Circuit sweep into their seats. They are here to consider the Oct. 16 gag order issued by U.S. District Judge Tanya Chutkan, who is presiding over Special Counsel Jack Smith’s federal election interference case. The question is whether the order, put into place to ensure a fair trial, violates former president Donald Trump’s First Amendment rights.

At the appellant’s table are Trump’s lead appellate lawyers, D. John Sauer and William O. Scharf, plus his trial-level lead, John Lauro. Right behind them in the gallery sit the rest of Trump’s team, including Todd Blanche, Greg Singer, and Emil Bove.

At the appellee’s table sit Assistant Special Counsel Cecil VanDevender and Counselor to the Special Counsel Ray Hulser. Special Counsel Jack Smith is in the first row of the gallery behind them, flanked by security detail on either side—and in the second row of the gallery are six more members of the government’s team, including district court leads Molly Gaston and Thomas Windom. 

At 9:33 a.m., the clerk calls the court to order. Sauer approaches the podium.

“Thank you, your honor and may it please the Court.” He says he’s appearing on behalf of “the appellant, President Donald J. Trump.” 

Judge Chutkan’s gag order, he asserts, “installs a single federal district judge as a filter for core political speech between a leading presidential candidate and virtually every American voter in the United States at the very height of a presidential campaign.” The order is a “radical departure” from the only two cases that have considered the specific question of restriction of speech for criminal defendants, he continues. In 2002, in Republican Party of Minnesota v. White, the Supreme Court held that a court can never allow the government to prohibit candidates from communicating relevant information to voters, and in 2000, in United States v. Brown, the U.S. Court of Appeals for the Fifth Circuit granted the candidate in question “absolute freedom” to comment, as a part of his campaign, on his criminal case. 

Sauer asserts that Chutkan’s gag order also breaks with established jurisprudence because it relies “completely on an insupportable heckler’s veto theory.” The order attempts to block speech on the premise that it may inspire third-party actions somewhere down the line. That’s a quintessential example of a heckler’s veto, contends Sauer, which the Supreme Court has unequivocally said cannot be a permissible rationale for silencing an individual.

Judge Millett is first to break in. She wants to know if Sauer’s position would be any different if this were November 2022. Sauer says no. The gag order would still be unconstitutional, in violation of “at least seven First Amendment precepts,” even absent an active presidential campaign. He adds, however, that the existence of the campaign is the “crown jewel” issue among those First Amendment precepts. 

Judge Pillard is next. She wants to know why he thinks Chutkan’s interest in a fair and impartial trial and her desire to protect nonpublic figures are insufficient to justify her order, especially in light of her finding that there’s a “dynamic” at play here: a record showing that Trump’s public statements tend to lead to threats and harassment. Sauer disputes Chutkan’s finding, asserting that most of the evidence on which she relied was from 2020. Trump has made public comments “almost incessantly” since this case has started, says Sauer, yet none of what Trump has said thus far has led to violence. The order must be based on more recent facts, he contends, and the appeals court can engage in plenary review of the evidentiary record under de novo standard because it’s a First Amendment case. 

Sauer says that it’s not even that Judge Chutkan’s order prohibits speech based on the potential secondary effects of Trump’s comments on others—which Sauer says the Seventh Circuit prohibited in Collin v. Chicago Park Dist. Rather, he says, her order prohibits speech on “tertiary or quaternary effects,” given the lack of evidence of any known adverse impacts.

When Pillard suggests that the order is meant to be prophylactic, Sauer says that an order can only be allowed where the “solidity of the evidence shows an imminently impending danger”—a reality we are nowhere near, he asserts.

Judge Garcia jumps in here: So is Sauer arguing that the District Court’s hands are tied until it’s too late—until actual harm has occurred? Garcia asserts that the Fifth Circuit rejected that argument in Brown. Relying on Gentile v. State Bar of Nevada (1991), the court drew a distinction between speech restrictions on those who are participants in the litigation and those who are strangers to it, he says. Why shouldn’t Trump fall into the category of those participating in the trial? 

Sauer insists that the “clear and present danger test” applies to any regulation of speech, regardless of whether Trump is a participant in a trial. (The government’s position is that a lesser standard applies here: the “substantial likelihood of material prejudice” test.)

Returning to the fray, Judge Millett asserts that there must be some sort of difference between the standard that applies to strangers to the case and participants in the case. For the next few minutes she and Sauer volley back and forth about whether there’s a standard between the “clear and present danger” test that Sauer thinks always applies and the “substantial likelihood of material prejudice” test the government is championing. But Sauer holds his ground. 

Judge Millett then tries a different tack. She wants to know if Sauer concedes that a trial judge can constitutionally limit a criminal defendant’s speech in any way beyond what’s already limited by criminal laws, like the witness tampering statute. She notes that  the Supreme Court’s conception of even the clear and present danger test is still that it is a balancing test that requires consideration of the weighty constitutional interest in protecting the integrity of a criminal trial as well as the First Amendment interests of the defendant. 

Sauer responds that Brown guarantees the defendant “absolute freedom” on core political speech.

“So there is no balance,” says Judge Millett. She adds that calling it “core political speech” begs the question of whether it is in fact political speech or whether it is speech “aimed at derailing or corrupting the criminal justice process.” Sauer responds that Trump’s campaign speech is “inextricably entwined” with freely responding to the entire election interference prosecution. 

Judges Pillard and Millett then ask a series of questions that explore the differences between the restrictions on Trump’s speech already imposed by his conditions of release—which he has not challenged—and those added by the gag order. The conditions of release forbid him from speaking directly to known witnesses, for instance. So if Trump phones a known witness and says, “good patriots don’t work on the government’s behalf,” Millett asks, would that violate the conditions of release? Sauer concedes that it would and  that the condition of release would be constitutional. So what if, Judge Millett asks, we move to the debate stage, and says essentially the exact same thing there: Remember, witness X, good patriots don’t work on the government’s behalf. Sauer says he’d need to know about the context. 

“I’ve given you all the context you need to know,” says Judge Millett sharply. If he does it over the phone, she says to him, you’ve already said that he’s prohibited and it’s not a violation of First Amendment rights. If he says it “with a megaphone,” knowing that the witness is in the audience, what then?

Finally, Sauer agrees that that would likely also violate the conditions of release. 

What if he says the same thing on social media, says Judge Millett. 

Now she’s getting closer to protected core political speech, he says.

Judge Pillard interjects: Doesn’t it have to be the case, as Judge Millett said, that it’s a violation of Trump’s conditions of release even if this statement is on social media?

“Legion are the cases that say there’s no right of a criminal defendant to try his case in the media,” Pillard says. “That’s what the court is for.” She acknowledges “some substantive overlap” between what Trump wants to say while  campaigning and his ability to comment on the prosecution’s case, but thinks that Trump still can’t, say, attack witnesses openly.

Sauer parries that there’s not just some overlap, but “complete overlap” between the issues presented by the prosecution and the issues of the political campaign. Judge Pillard asks how an attack on court staff constitutes a legitimate overlap with the issues of Trump’s campaign. Sauer says Trump’s entitled to comment on  potentially biased court personnel. 

Judge Pillard returns to witnesses: Can’t there be a prophylactic order aimed at preventing threats to them? 

“What is described as a threat here is core political speech,” Sauer responds. “It is rough and tumble, it’s hard hitting in many situations, but it absolutely is core political speech.” All the examples used to justify Chutkan’s order are instances of speech directed at “public figures from the highest echelons of government,” from the former vice president to the former attorney general to the former chairman of the joint chiefs of staff. The idea that their testimony would be influenced by Trump, says Sauer, is “not compelling.” 

Judge Garcia now turns to a new topic. Vagueness. What’s an example, he wants to know, of something Trump wants to say that he’s not sure whether he’s permitted to or not? Sauer says he doesn’t know how to counsel Trump about whether he can say “department of injustice” or “crooked Joe Biden.” Garcia protests that these are exactly what the court did allow Trump to say. 

But Sauer persists: He says even with those specific examples, he’s not sure how he might advise a client on what is or is not allowed, to know when one is going from the “safe harbor of the general to the forbidden.” 

Garcia nods as Sauer speaks, and tells Sauer that he appreciates this argument. Sauer asserts that the order is especially vague as to what it means to “target” someone. Here, Pillard appears to share some concern. What if that language was changed to say that Trump couldn’t “comment” on any foreseeable witness “because of” their participation in the trial, she asks. 

Sauer quickly rejects the proposal. That would “trade one vagueness problem for another,” he says and would be “equally bad.”

It’s the home stretch for Sauer. We’re back to a core question: how to balance the government’s interest in a fair trial against Trump’s First Amendment rights. Pillard observes that Sauer’s position would prohibit the court from doing anything until the “compelling harm” has already occurred; this does not give much weight to the fair trial interest. Millett asks if Sauer disagrees that the Supreme Court allowed restrictions on speech that could potentially impact the administration of justice in Nebraska Press Association v. Stuart (1976). Sauer responds that he disagrees with the way Millett is interpreting the case.

Would a restriction on talking about jurors violate First Amendment speech, Pillard wants to know. Here, Sauer says it depends on if they’re anonymous or not: If they’re already known to the public, then there’s little that the court could prevent speech further since it’s already in the public domain. That’s the case here.

Judge Millett has one last hypothetical.  Suppose it’s the night before former President Mike Pence’s scheduled testimony. Trump tweets out: “Mike Pence can still fix this. Mike Pence can still do the right thing if he says the right stuff tomorrow.” Is this something the district court could prohibit? 

Only if there’s a compelling evidentiary showing of an actual threat, says Sauer. 

Judge Pillard chimes in: “Only after it’s happened.” Sauer laughs.

So Sauer does not allow for any prophylactic measure by the court, Millett comments. 

It’s 10:49 a.m.—almost 70 minutes into an argument that was originally scheduled for 20 minutes per side—and Sauer is finally allowed to sit down. 

Now it’s the government’s turn. Assistant Special Counsel VanDevender begins by saying that the district court correctly found that Trump has a practice of using his public platform to target adversaries. That poses “a significant immediate risk to the fairness and integrity” of the Jan. 6 case. This court should affirm the district court’s order for three reasons, he says: first, because of the “unique factual record” before the district court; second, because of the “unusual narrowness” of the order; and third, because recent evidence that shows that Trump can indeed comply with the order while it’s in effect. 

Judge Millett is first to break in again. She observes that VanDevender employed the “significant and immediate risk” language Judge Chutkan used in her order. Does that mean he’s not embracing the “substantial likelihood of material prejudice” test in Gentile? VanDevender explains that he’s using that language based on the finding that the district court made about the risks posed by Trump, as that finding informs the order and its contours. Ultimately, though, the test the government seeks to use is the one set forth in Gentile. 

Judges Pillard and Garcia then ask about the parts of the order protecting court staff and their families. What exactly is the nexus between Trump’s commenting on court staff and the proper administration of justice? VanDevender says that if court staff have to question whether their participation in the case is worth the risk, there can be a “chilling effect” on the whole proceeding.

Pillard continues the line of questioning. Is the need for this protection based on concerns about impacting court staff’s impartiality in administering the case or concerns about affecting staff willingness to serve? VanDevender responds that Trump’s attacks on staff could affect how they are perceived by the jury. 

Garcia would like VanDevender to address the Trump team’s contention that the district court’s order is based on information from three years ago. VanDevender says that Trump’s continuous stream of commentary, combined with the proven record of harms from comments about the same subject matter in  2020 and 2021, provides sufficient basis for the district court’s order. 

“The notion that there was some dynamic that existed in 2020 that has since abated or gone stale, I think is wrong,” he says. 

But Millett wants to know how accountability in the age of social media works. How do we differentiate between the harm caused by a social media post that Trump sends to his millions of followers versus the harm triggered by the media’s reporting on what Trump says in other public fora, for instance? How can the district court attribute blame to Trump specifically for prompting adverse conduct? 

VanDevender responds that it’s about the “sheer number of occurrences” in which someone was the recipient of a threat and then subsequently experienced harm. Millett asks if anyone has testified to this effect since this prosecution was initiated. VanDevender says no, but he points out that Judge Chutkan herself received a death threat shortly after the D.C. indictment came down and the day after Trump wrote: “If you go after me, I’m coming after you!” 

Millett then moves on to the question of what weight the government is giving to Trump’s First Amendment rights. She wants to know what “inflammatory” speech is and says that the notion that high-profile public figures “who’ve taken on enormous responsibility … can’t stand up to some inflammatory language” seems contradictory to Supreme Court precedent on the matter and reflects, to her, a “troubling lack of balance on the free speech side” of this issue. 

While the presumption is that speech is protected, VanDevender says, it can be proscribed if there’s a substantial threat of material prejudice to the proceeding. He says the record establishes a causal link between Trump’s repeated inflammatory attacks on individuals and subsequent harassment, threats, and intimidation. He adds that the district court has made a distinction between institutions and individuals—the former are okay to go after, but not the latter. 

Millett is skeptical. Since a prosecutor represents the U.S. government, how does this line of reasoning work? And is there a difference between Special Counsel Jack Smith and a line prosecutor? Wouldn’t calling a prosecutor politically biased be considered “targeting” as expressed in the district court’s order? VanDevender thinks that the proper way for Trump to allege bias is through a motion. 

Well, asks Millett, could Trump say that the case is politically motivated on a debate stage, were he to participate in one? Suppose he’s  being bombarded on stage with attacks from rivals about being an “indicted felon,” for instance. “He has to speak Miss Manners while everyone else is throwing targets at him?”

The conversation then turns again to whether the “targeting” language in the order is too vague. Pillard asks what VanDevender thinks about changing that to a restriction on “commenting” on potential witnesses “because” they are witnesses? VanDevender is open to that substitution, calling it a “valid gloss” on the “targeting” language, although he thinks that “targeting” more accurately captures the elements of harm that the prohibition on certain speech is meant to prevent. VanDevender also clarifies that Trump can “comment critically” on things—he just can’t try to inflame things. 

The conversation shifts now to some real-world examples. Millett brings up Trump’s tweet attacking General Mark Milley, which he sent out after Milley made comments critical of Trump during his  book tour. Trump likened Milley’s conduct to treason and observed that treason was once punishable by death. Millett questions whether the order prohibits Trump from saying anything disparaging at all about a potential witness, even if it’s unconnected to his potential testimony. Pillard then expresses skepticism that Trump’s comments could really frighten someone like Milley into changing his testimony.  VanDevender responds that it’s not so much that  high-profile, powerful witnesses will change their testimony, but that less powerful witnesses may be cowed or chilled by what they see happening to the high-profile witnesses. 

Judge Garcia raises the “Bill Barr is a slimy liar” example. Can Trump say that? No, says VanDevender, because it’s an attack on credibility and is inflammatory. 

What if we take out “slimy,” Judge Millett asks. Can Trump call someone a liar, say, on a debate stage? VanDevender says no. Millett seems incredulous. Why can’t he use the word “liar,” after someone has, for instance, unloaded “political dynamite” against him? 

“Can he say ‘That’s untrue?’” Millett asks.

“Yes,” responds VanDevender.

“Okay. But he can’t say that that person is an ‘un-truth speaker?'” quips Millett. 

Judge Pillard has her pen against her mouth, which is curved up in a smile. VanDevender laughs softly, as does the rest of the room. Millett presses on with this line of questioning, asking if Trump’s lawyers would literally have to ex out the word “liar” in a hypothetical speech that Trump wants to give and replace it with the term “un-truth speaker.” She asks him if he has a suggestion for another term Trump could use instead. 

But VanDevender doesn’t give in: He maintains that characterizing someone as a liar is an attempt to erode the witness’s credibility. The order maintains the right balance, he says, by allowing Trump to campaign while also ensuring he doesn’t try the case in the court of public opinion.

The last chunk of the discussion goes back to Gentile. Judge Millett asks whether VanDevender can explain why the reasoning of Gentile focuses so much on the special power of courts to regulate attorneys’ speech, rather than on a general power of the courts to limit defendants’ speech. VanDevender suggests that it’s because the court needed to explain why criminal defense attorneys, who may, on first blush, seem to have more leeway than others on speech, but actually are just as regulated as all other participants in the trial, including the defendant. Millett wonders if, for the government to limit speech, there shouldn’t be three tests for three different categories of individuals targeted by the restrictions: those outside the trial (like media, for instance) would be subject to greatest protection, the “clear and present danger” test; participants in the trial would be subject to the Gentile standard, the “substantial risk of material harm” test;  and then the criminal defendant, subject to some in-between standard. Why doesn’t the U.S. legal system’s history of allowing the defendant a vigorous defense give the defendant wide latitude to speak out against the government prosecuting him or her? 

“We have set up a lot of pro-defendant, make-it-really-hard-for-the-government requirements because we don’t want to be like other countries. And I’m asking why that wouldn’t include allowing a criminal defendant, for example, to publicly say ‘That person who just had a press conference denouncing me is a liar,’” says Millett.

VanDevender denies that criminal defendants have a “uniquely expanded set of rights.” He protests that the criminal justice system imposes restrictions on the liberty of criminal defendants regularly, he says, including even pretrial detention. Millett responds that there haven’t been specific First Amendment challenges to some of the restrictions permitted by the Bail Reform Act. She asks whether the government has a “backup higher standard” to propose between  the “clear and present danger” standard and the “substantial likelihood of material prejudice” test. VanDevender says that because the “clear and present danger” standard is a “malleable” one, he doesn’t think it’s necessary to do so. 

With that, VanDevender is done. Offered the chance for a four-minute rebuttal, Sauer declines. So at 11:50 a.m., we’re adjourned.