During oral arguments for the prosecution — which... long exceeded the 20 minutes typically allotted — assistant U.S. Attorney Cecil Vandevender said the record brimmed with examples of Trump’s “well-established practice of using his platform to target his adversaries” and that this pattern of rhetoric, if left totally unchecked, would endanger proceedings in numerous ways. That would include discouraging public civil servants from taking on cases associated with Trump.
The judges seemed unpersuaded by this particular line of argument, noting that [Jack] Smith was a taxpayer-funded public figure who could reasonably expect to see his name in headlines or spilling from the lips of an adversarial criminal defendant. On balance with the First Amendment, Millett suggested that prosecutors may not be considering the rigorous protections afforded to political speech.
Plus, she prodded: was Trump’s “inflammatory language,” as highlighted in the request for the gag order, really so withering it could deter them from their work?
Vandevender cautioned that public servants would ask themselves "Do I want to handle this case or in doing so, will I be threatened?"
Pillard responded: "Surely he has a thick enough skin."
Millard observed "that Trump cannot be expected to be 'Miss Manners' as he campaigns."
ADDED: Here's the Washington Post account of the oral argument, "Appeals court suggests it may pare back Trump’s D.C. gag order/Panel weighs 1st Amendment protections for Trump’s speech as presidential candidate against danger posed by his verbal attacks on witnesses, prosecutors and the court in 2020 election case":
The judges appeared intent on holding Trump to the same standard of behavior as other defendants, even as they worried that such a standard might be overbroad and unfair in this instance....
As Millett succinctly asked: Is it core political speech, or is it “political speech aimed at derailing or corrupting the criminal justice process?”...
[Trump's lawyer D. John] Sauer claimed [Judge] Chutkan’s order... install[ed] “a single federal judge as a filter” between a presidential candidate and the American voters.
Sauer said the order was a “radical departure” from Supreme Court precedent allowing restrictions on a candidate’s political speech at the height of a campaign only when the speech would pose a clear and present danger or “true threat” of immediate violence....
Holding Trump responsible for the unplanned and unintended action of any random supporter amounted to granting a “heckler’s veto” to his free speech, [Sauer argued,] a principle the Supreme Court has long rejected and that the ACLU warned against in Trump’s gag order case.
Trump’s defense said his case was inextricably and “deeply intertwined” with his political candidacy, arguing that he must be allowed to support his claims that his prosecution is politically motivated and biased.
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29 comments:
Damage control, but likely too late in this latest Whitmer... Democratic conspiracy to go unnoticed.
"Appeals court judges express skepticism as Trump lawyer fights to reverse gag order in Jan. 6 case" (Law and Crime).
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If all I had was this headline, I'd think the judges were against reversing the gag order, not in favor of reducing it.
John Henry
Just never-ending Kabuki Theater and distractions ever since Hillary got caught breaking 1,000 national security rules and laws with her home email server. Then Huma and her pervert husband. Then fake impeachments. Then fake this. Fake that. Then Biden and his sleazy son.
"The best defense is a good offense." Sigh. Yawn.
Emperor Nero fiddled while Rome burned (or, he hung out at a beach resort and played music while an arranged arson fire conveniently burned down the exact region in Rome where he wanted to build a new palace or something).
So you say there’s a chance?!
/sarc
The corrupt Soviet left. They are all the new Soviets.
How come all these panels for the DC appeals court always seem to consist of 2-3 Obama/Clinton appointees. This news article is BS, designed to make people believe these leftwing judges are actually looking at the cases based on the Constitution and case law. They're not. They hate Trump, and 2 or 3 will side with Smith, either whole or in large part.
Trump can appeal to the SCOTUS but good luck with that. Roberts hates Trump. Kavanaugh is NOT grateful to Trump for putting him on the bench. he's a Bushie and will destroy Trump by not fighting for him.
People are fooling themselves into thinking Trump can get a fair trial in DC. The judge is ruling against him. The appeals court will rule against him. And the jury will be made up of 12 Trump hating Libtards - DC voted against him 94-6. He will be found guilty. the only question is when. And don't count on the Leftwing judge to go easy on him. He will be sent to jail.
A completely unneccessary political crisis will happen in 2024, because McConnell and GOPe are going along with the destruction of MAGA and Trump.
Just as there's no "disinformation" exception to the First Amendment, there's no exception for speech critical of prosecutors and court employees. And the idea that this prior restraint of speech outside the courtroom is needed to "protect the integrity of a court proceeding" is absolutely perverse. Even as applied to THIS CASE, it would do far more damage than good, in terms of the integrity of the judicial process, enforce a gag order against Trump. It would only contribute to the already well-justified public impression that this is a targeted political prosecution.
A final point: Whatever the public interest is in protecting the integrity of this prosecution and trial, it pales in comparison to the public interest in ensuring a fair presidential election. This is just one garbage federal prosecution out of thousands. Except for Trump and his family, no American is going to be better or worse off depending on whether Trump gets convicted or not. The presidential election OTOH is indisputably a matter of great practical importance to everyone. So it's ludicrous for a judge or prosecutor to point to the public interest in protecting this court case as if it outweighs the public interest in the election.
Whenever I see gag order, I have a vision of Ving Rhames and Bruce Willis sitting in front of Zed in Maynard's basement.
What is the purpose of this article? To assure us that the judges are fair and open-minded, it seems.
Maybe they are and maybe they aren't. How could I actually know?
What would be the cost to these judges personally if their decision was politicized?
What would be the cost if it wasn't?
Which would be greater?
How many people on the left even want a fair hearing? The damage to the institution of American courts is done. How will we ever go back?
"Obama appointee" "Trump appointee" "Biden appointee"...
At least we've stopped pretending Judges are unbiased. They are nothing more than political creatures like EVERYONE else. And...they are fully expected to side with the side that appointed that. At a minimum to show appreciation.
Unless, of course, you're a Bush 41 or Bush 43 Supreme Court judge. Then you just screw over everyone who brought you to the party.
I was gonna comment, but Howard ended this discussion with the definitive image.
There is a U.S. Court of Appeals for the D.C. Circuit (which is a federal appeals court) and there is a D.C. Court of Appeals (which is the highest local court in the District of Columbia). There is no U.S. District Court of Appeals.
Or?
You gag a presidential candidate and the experiment in self-goverment is over.
Trying to stop stochastic speech = granting a heckler veto?
And Zed ended up dead.
"Whenever I see gag order, I have a vision of Ving Rhames and Bruce Willis sitting in front of Zed in Maynard's basement. "
Not really a surprise, Howard.
"The District Court of Appeals panel . . . " What is a District Court of Appeals?
The argument was framed in First Amendment terms, but the dynamic in play had much more to do with the unwillingness of the judiciary to lose control of the courtroom. Normally, First Amendment issues cannot be decided based on the imagined hypothetical impacts of speech on an equally hypothetical audience -- e.g., the "jury," which won't be selected for many months from whoever ends up in the venire; "civil servants," who are numbered in the millions and, depending on how public-facing their jobs may be, may have had experience with criticism; etc.
The "danger" that the gov't points to in these cases is typically phrased in terms of the impact of the speech on the "fairness" of the trial process. But when it comes to pre-trial publicity and commentary, the process is already heavily weighted in favor on the prosecution (the fanfare the accompanies the announcement of any significant indictment, the leaks to the press from the cops, agents and others on the prosecution side, etc.) and especially so in these Trump cases. As the Chauvin trial showed, courts routinely find that they can provide a "fair" trial even in the teeth of far more direct threats of violence if the jurors reach the 'wrong' decision, using the usual devices of cautionary instructions, anonymous juries, and the like.
What's really driving the train is just a determination by the courts to control the only part of the publicity surrounding a trial that a court can, as a practical matter, subject to its control, i.e., speech by the defendant. On this as in so much else about the criminal justice system, the process heavily favors the prosecution.
Obama/Biden, Democrat, DC Circuit judicial appointees "express skepticism" about a Republican defendant's First Amendment rights. Big surprise.
DC judges have nullified Jan. 6th defendants' right to a speedy trial and reasonable bail. Why not trample the First Amendment rights of the leading candidate for President of the United States?
"As the Chauvin trial showed, courts routinely find that they can provide a "fair" trial ...." Not a great example of a fair trial.
"On this as in so much else about the criminal justice system, the process heavily favors the prosecution." It is not the "process" so much as the fact that if the prosecutor screens his cases properly, virtually all defendants are guilty.
Judges have historically worked to protect the rights of defendants and that shows in the process and in caselaw, except in political prosecutions in Democrat jurisdictions.
"As the Chauvin trial showed, courts routinely find that they can provide a "fair" trial ...." Not a great example of a fair trial.
"On this as in so much else about the criminal justice system, the process heavily favors the prosecution." It is not the "process" so much as the fact that if the prosecutor screens his cases properly, virtually all defendants are guilty.
Judges have historically worked to protect the rights of defendants and that shows in the process and in caselaw, except in political prosecutions in Democrat jurisdictions.
The Chauvin trial was a "fair" one? Bwhahahahahahha
Even St. George of Fentanyl is laughing from his place of rest.
MarcusB. THEOLDMAN
Judge Pillard's husband is ACLU Legal Director. Free speech arguments should resonate with her.
Whenever I see gag order, I have a vision of Ving Rhames and Bruce Willis sitting in front of Zed in Maynard's basement.
Hahaha... "I'ma get medieval on your ass"
- Krumhorn
Please, Althouse, remember the difference between the "DC Court of Appeals" (the local high court, equivalent to the highest appellate court of a State) and the the Federal Court of Appeals for the DC Circuit, the highest federal appellate court until you get to the Supreme Court.
Tie me kangaroo court down, Sport,
Tie me kangaroo court down,
Tie me kangaroo court down, Sport,
Tie me kangaroo court down...
The Government, in the person of Jack Smith in particular, has publicly asserted and argued that the defendant, Donald Trump, is a criminal and a danger to the country.
What could possibly be more inflammatory and threatening than that?
On this “fair trial” thing.
The accused has a right to a fair trial, the boundaries of which have been well established by precedent.
The prosecutor does not have any right to a fair trial. At all. Not even slightly. The prosecutor has the right to pursue a conviction by whatever means the law allows him whether they’re fair to him or not.
When the prosecutor starts wittering about the prosecutions right to a fair trial, you should ask him what he thinks he should be on trial for.
I listened to some of this on CSPAN radio in my car. Vandevender seemed to have very weak answers to the judges' questions. He accepted the view that the current ban prohibited Trump from saying "x is a liar" but permitted him to say, "x is an untruth teller." I blame Chutkun the judge who wrote the order -- either she's fundamentally not very smart, or she's so afflicted with TDS that she doesn't care about a legal analysis of her order as long as it allows her to vent against Trump.
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