The appeal of a gag order imposed by Judge Tanya Chutkan on Donald Trump’s election interference case reached the US Circuit Court for the District of Columbia. Trump’s counsel, D. John Sauer, and assistant special counsel Cecil VanDevender experienced a rigorous round of questioning from the panel, which took significantly longer than the initially allocated 40 minutes (Court Listener).
The gag order, which was implemented due to concerns that Trump’s social media statements could intimidate witnesses and incite threats and harassment against attorneys and court staff, applied the “substantial likelihood of material prejudice” standard set out by the Supreme Court in Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991)
Trump has consistently argued that the Gentile rule doesn’t apply to him since he wasn’t an attorney in the case. He suggests that the Brandenburg incitement standard should be the measurement. However, Judges Patricia Millet and Cornelia Pillard have pointed out that this would mean Trump, and any other defendant, would have to commit a crime to violate the gag order, effectively rendering it meaningless(Court Listener).
Amidst the proceedings, an example was proposed, wherein the court questioned the legality of Trump instructing Mark Meadows not to testify versus posting the same on Truth Social (Truth Social). Despite the concerns and examples raised in court, Sauer doggedly maintained that the court does not have the authority to restrain Trump any more than it would the press.
It’s evident that the case presented nuances, ranging from balancing Trump’s First Amendment rights to ensuring the fair conduct of legal proceedings. Following the gruelling questioning of both counsels, the hearing was adjourned. As the title suggests, swing of the legal pendulum suggests that Trump’s DC gag order might be poised for a narrowing(Above The Law).