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Gag Order. Appealed and Argued.
It was a hot bench. A couple of minutes into their prepared arguments, the lawyers for both Trump and then the Special Counsel’s office were interrupted by judges with questions. Lots of them and rapid fire. For appellate lawyers, it’s always a pleasant jolt of adrenaline when this happens; at least that’s how I viewed it. It means the judges are prepared and engaged—they’ve digested the briefs, reviewed the record, and identified the pressure points in each side’s arguments. Especially when your case is solid, you welcome a hot bench.
As an appellate lawyer, once you know who the three judges on your panel are, you prepare for them. You study their previous cases on issues raised in your case—judges are human after all and they like to discuss their own prior opinions. Through research, you can learn which arguments may appeal to them, and what they’ve rejected in the past, in order to prepare as best as possible for the unpredictable time you’re about to have in court. Sometimes it’s a tame, polite affair. But other times, like today, less so, as when the judges schedule each side for 20 minutes of argument and it goes on for over an hour.
A skillful lawyer knows when the judges aren’t buying an argument and moves on. You can build credibility by conceding obvious problems in your argument. Then you explain how the panel can work around them to reach your desired result. There’s no point in standing on arguments that are obviously wrong—for instance Trump’s lawyers’ insistence today that as a candidate, he has an absolute First Amendment right that means he can say whatever he wants to, wherever he wants to, free of consequence.
That’s simply not the case. There are relative rights and concerns that need to be balanced here. Like many cases where different equities need to be balanced, the decision comes down to a line-drawing exercise—where should the court draw the line that demarcates Trump’s right to engage in political speech from the need to protect the integrity of the trial and the safety of people involved?
But Trump’s lawyer ducked the hypotheticals on what is and isn’t protected speech. What if Trump said that patriots don’t cooperate with prosecutors? Would that be okay, the panel asked? What if Trump called a witness and said that? What if he said it with a megaphone knowing a witness in the case was in the audience? What if he posted on social media knowing that the person he was posting about follows him? Trump’s lawyer declined to concede that any conduct would be objectionable, a poor strategic call when there are lines that are going to be drawn. Trump’s lawyers left it entirely up to the court.
Here is an area where Trump’s camp could have conceded it was appropriate to prevent direct threats and interference with witnesses, while still maintaining (even if they ultimately lost), a broad scope of conduct that should be protected. Look for the court to flag Trump’s unwillingness to acknowledge the obvious when they rule here. Instead of giving the court some proposed lines—because it’s clear Trump can’t do anything he wants to—the court has only its own and the government’s ideas to go on. Playing to the audience of one may work for employees or in the political arena, but it’s a bad strategy in court.
Circuit Judge Patricia Millett suggested that the gag order isn’t a threat to Trump's First Amendment rights, saying, "This is only affecting the speech temporarily during a criminal trial process by someone who has been indicted as a felon." The fact that's there's little precedent involving a presidential candidate who threatens judges, prosecutors, witnesses, and other personnel while under criminal indictment underlines just how bizarre and reckless Trump's conduct is—in other words, why there needs to be a protective order in some form.
As a young appellate lawyer, one of the first things I was taught was to never speak over a judge. If a judge interrupted with a question, you stopped, listened, and answered. Respectfully. I passed that wisdom on to all of the new lawyers in my appellate division when I became the chief. It serves well. We call these proceedings “argument” because they are meant to fully air the positions the parties are taking, their relative merits, and their flaws—not because the lawyers are arguing with the judges. But we saw a fair bit of that today, with Trump’s lawyer often trying to continue speaking or speak over a judge who injected a question. That’s a bad look for an appellate lawyer, and an approach that is often a prelude to disaster.
Reading tea leaves in oral argument is an inexact science at best, but here it seems likely that the gag order will survive in some form, even if the appellate panel either directs Judge Chutkan to restrict it. If I was going to guess, which I try not to do with appellate courts, I’d expect a prompt order that underlines Trump’s right to engage in political speech, while prohibiting conduct that exposes witnesses and other public figures to risk from Trump’s most volatile adherents or that risks impairing the integrity of his trial.
All three of the panel judges were appointed by Democratic presidents, but the lawyer representing the Special Counsel’s office was pressed as tightly as Trump’s lawyer was. Some of the questioning suggested that the gag order should be narrowed. Judge Millet expressed concern about how broadly the word "targeting" could be construed.
She pushed the government’s lawyer on what Trump could and could not say at a hypothetical debate—she acknowledged Trump had not participated so far. But she asked how far he would be able to go, if he did, in response to criticism of him as someone who was indicted and could be a felon by the time of the election. She wanted to know what Trump could say to push back, and why, in particular, he couldn’t identify prosecutors, whose appearance in the case was a matter of public record, by name.
That line of questioning suggests the panel may land on a gag order that is less restrictive. But if, as seems likely, the court affirms the order at least in part, it also means it's endorsing Judge Chutkan’s ability to enforce it if Trump violates the order as trial draws closer. Trump would do well to take note and restrain himself if this happens. But there is little doubt that he will continue to try and exploit the situation politically, while pushing to delay trial until after the election. We are, as we frequently note, in uncharted waters.
If you’ll forgive me for indulging in a personal reminiscence, even before Rosalynn Carter’s death earlier this week, she and President Jimmy Carter had been on my mind. President Carter appointed my father-in-law to the Eleventh Circuit Court of Appeals in December of 1977. Our youngest son, who was born almost fifteen years after his grandfather was murdered by a disgruntled litigant in a case before the court, has been full of questions about him and the President who appointed him. So we’d been talking about President Carter, his policies, his good works after leaving the White House, and his and Pop’s common background as farm boys who developed a love of public service and politics.
I was reminded that President Carter came over to Birmingham alone, with a small Secret Service detail, for my father-in-law’s funeral. He spoke privately with us beforehand. I don’t remember anything that he said, but I remember him taking both of my mother-in-law’s hands in his own, speaking with her quietly and comforting her. I was left with the impression that it weighed heavily on him, although it shouldn’t have, that his old political ally had been killed because he was in a position President Carter had appointed him to.
As I reflect on the Carters’ commitment to the public and their innate goodness, it’s impossible to avoid drawing a comparison to Trump, who seems intent only on exploiting America for his own purposes. He really doesn’t care.
We’re in this together,