Appeals court weighs lifting gag order in Donald Trump's Washington election interference case

An appeals court on Monday will hear arguments on whether or not to lift a gag order in former President Donald Trump's election interference case. Photo by John Angelillo/UPI

Nov. 20 (UPI) -- Federal appeals court judges peppered attorneys for former President Donald Trump and special counsel Jack Smith about a limited gag order issued by U.S. District Judge Tanya Chutkan in Trump's election interference case.

The judges did not make an immediate ruling but heard roughly 20 minutes of arguments from both sides on the gag order that Chuktan has argued was meant to protect the integrity of the cases and the jury pool.

They initially quizzed the team of special counsel Jack Smith on what is defined as inflammatory language and how broad that definition can be.

"[Trump's rhetoric] is not how I want my children to speak, but that's really not the question," Appeals Court Judge Patricia Millett told government lawyers.

They then challenged the prosecutors to just how Trump could respond if facing questions directly in a debate or questioning about the cause if he is in a political forum.

"Doesn't the First Amendment protect ... inflammatory language?" Millett asked. "Your position doesn't seem to give much balance at all to the First Amendment's vigorous protection of political speech."

Judge Cornelia Pillard pushed back on Trump's contention that there was no limit to Trump's free speech in the court case, using an example that the ex-president would not be allowed to contact witnesses, threatening or not.

"The conditions-of-release order doesn't care about content," Pillard told Trump's attorney Jon Sauer in a raised voice.

Smith's attorney Cecil Van Devender told the judges that his team has "been subject to multiple threats" after Trump posted "inflammatory" remarks about the special counsel on social media.

One of the judges retorted that Smith has "thick enough skin" to not be intimidated by such social media messages.

The appeals court had paused the order as it considered the challenge, so it is not presently in effect.

Trump's attorneys have said they believe the restrictions have singled out the former president as he embarks on a campaign to return to the White House in 2024, stating that the First Amendment doesn't permit the district court to "micromanage President Trump's core political speech."

The special counsel has argued though, that Trump is also a criminal defendant and his comments could affect the integrity of potential jurors and the case in general.

Smith's team said that Trump's often bombastic rhetoric and its potential to incite his followers could affect the way the trial moves forward.

Trump has verbally criticized prosecutors and witnesses, including his former Vice President Mike Pence, a potential witness in the case.

"I cannot imagine any other criminal case where a defendant is allowed to call a prosecutor deranged or a thug," Chutkan had said in setting her original order. "I will not permit it here simply because the defendant is running a political campaign."

Chuktan on Friday dismissed a motion from Trump's legal team to bar language related to the Jan. 6, 2021, riots at the U.S. Capitol that his lawyers had described as "inflammatory," as she ruled the legal team did not prove the language was prejudicial.

Also Friday, an appeals court temporarily lifted a similar gag order preventing Trump from talking about details of his civil fraud case.