Trump's attempt to impose gag order foreshadows America's critical election year tension
Trump's legal battle: A high-stakes gag order appeal highlighting the intense challenge to accountability in America's crucial election year
Donald Trump may have discovered the perfect legal loophole in his federal election subversion case – a "heads-I-win, tails-you-lose" scenario. Regardless of the outcome of his appeal against the imposed limited gag order, Trump stands to benefit. If he succeeds or if the three judges overseeing the case modify the restrictions, Trump will gain more freedom to challenge special counsel Jack Smith's case against him. On the other hand, if Trump fails, which appears probable based on the hearing's tone, he will have a fresh talking point to support his narrative of persecution aimed at sabotaging his 2024 campaign.
Former President Donald Trump speaks to Texas state troopers and guardsmen at the South Texas International Airport on Sunday, November 19, in Edinburg, Texas.
Eric Gay/AP
Takeaways from the tense appeals court hearing over the Trump gag order in federal election subversion case
If the gag order is ruled in Trump's favor - pending the appeal - it would be overshadowed by his ongoing civil fraud trial in New York and the four criminal trials he is facing. However, this issue and the hearing held on Monday offered a glimpse into the immense strain on institutions, political tensions, and significant constitutional concerns that lie ahead next year. It previews the challenges faced by the former president, who may also become the GOP nominee, as he fights for his freedom in multiple courtrooms while simultaneously striving to regain the presidency.
How the gag order case reflects Trumps intense challenge to accountability
The legal system's ability to avoid the tarnished reputation that other accountability institutions have faced, as they tried to manage or uncover the former president's distinct form of rule-breaking, is difficult to discern.
The appeal regarding the gag order delves into intricate discussions surrounding the First Amendment's extent and the courts' authority in regulating it for the purpose of safeguarding their officials, legal proceedings, and the administration of justice.
Based on Monday's arguments, it seems probable that the three judges, all appointed by Democrats, will mostly reinstate the limited gag order on Trump that was initially set by Judge Tanya Chutkan. These restrictions prevented Trump from verbally or socially attacking court personnel, prosecutors, or potential witnesses. However, they did not prevent him from expressing his grievances towards the judge, the Justice Department, the case in general, or his potential opponent in the upcoming presidential election, President Joe Biden.
Trumps legal team has argued that placing any restrictions on his comments would violate his constitutional right to freedom of political speech. However, the judges need to determine the extent to which these rights can be limited for a criminal defendant accused of attempting to interfere with the 2020 election. Trump has pleaded not guilty and maintains his innocence in all the cases against him.
The case is further complicated by the fact that Trump's harsh criticism of Smith as "a lunatic" serves a more significant purpose than simply expressing displeasure. It is part of a broader strategy to undermine the legitimacy of the justice system itself. DC Circuit Court Judge Patricia Millett highlighted this point when she questioned Trump's counsel, D. John Sauer, about whether labeling all of Trump's statements as "core political speech" disregards the possibility that they are intended to derail or corrupt the criminal justice process.
Trump's legal arguments also raise an important question: does his position as a politician grant him additional protection? His lawyers contended that imposing restrictions during "a fiercely contested campaign for the highest office in the United States of America" is even more unjustified. This presents a difficult balancing act for the judges as it not only addresses the role of the courts in safeguarding impartial trials but also impacts the integrity of the electoral system.
An excessively restrictive order could hinder Trump's ability to defend against political attacks on his candidacy, particularly since his campaign is closely intertwined with his legal battle. The judges' decision could have far-reaching consequences, affecting future political candidates for years to come. However, the notion that a political candidate might be allowed to intimidate witnesses on social media in a manner that an ordinary citizen would not raises another recurring question in Trump's legal cases - that of equality under the law and whether he is seeking preferential treatment solely based on his status.
"There have been numerous legal matters discussed in relation to Donald Trump over the years, and nothing poses a greater challenge for judges than interpreting the First Amendment and addressing these issues of free speech," stated Elliot Williams, a legal analyst at CNN. "Eventually, judges are forced to make subjective judgments about what is acceptable and what isn't. They undoubtedly faced significant difficulties in reaching a resolution over the course of many hours."
Given the delicate position in which the judges find themselves, it is difficult to imagine these questions being addressed without some form of negative impact on US institutions. However, Trump's willingness to bring them into the spotlight demonstrates, as usual, his prioritization of his own political objectives over the democratic foundations of America.
An unprecedented election
Trump's relentless attacks on the judicial process illustrate a never-before-seen aspect of a presidential election campaign, which cast a shadow over the hearing on Monday. With the possibility of being entangled in criminal trials for a significant part of the upcoming year, Trump is seeking every opportunity to exploit the legal system as a platform for a political battle. Moreover, it provides him with a cause that deeply resonates with his most devoted supporters - the notion that he is safeguarding them against what he portrays as a weaponized justice system.
The ex-president appears to believe that constructing such a narrative, which is perfect for accumulating campaign funds and assisting with his legal expenses, is his best chance at generating anger among Republican voters in order to secure reelection. Furthermore, a potential second term could potentially grant Trump the power to delay or even halt certain federal lawsuits against him.
Already, the ex-president is aiming to exploit the courtroom as a political stage in the ongoing civil case in New York involving himself, his adult sons, and his company. During his recent testimony, Trump provoked the ire of Judge Arthur Engoron by offering lengthy and politically-charged responses to specific evidential inquiries. Engoron admonished him, stating, "This is not a political rally. This is a courtroom."
The issue of a gag order in the federal election subversion case reveals concerns about the influence of Trump's rhetoric and its potential to incite violence. As a former president, Trump urged his supporters to "fight like Hell" for their country, which preceded the storming of the US Capitol on January 6, 2021, to interrupt the election certification. It is worrisome that Trump's aggressive attacks on potential witnesses, court staff, and others may lead to actual harm, even without explicit instructions. Recently, a judge in Colorado stated that the ex-president participated in an insurrection after the previous election, although she admitted her inability to prevent him from appearing on the primary ballot in the Rocky Mountain State.
The issue of incitement is not just a theoretical one in the case involving the gag order. Former President Trump has already launched multiple social media attacks on former Vice President Mike Pence and Gen. Mark Milley, the former Chairman of the Joint Chiefs of Staff. He even went as far as suggesting that Gen. Milley should be executed for treason. These individuals could play crucial roles as witnesses in the federal election subversion case, and therefore, they deserve the protection of the court. Even if Trump sees them as fair game due to their political criticisms during a heated political campaign, they are still entitled to legal safeguards.
Based on past events, if Trump loses this appeal, he will likely portray it as evidence of an attempt by the Biden Justice Department to persecute him, and he will probably try to take the case to a higher court. Seeing the legal system as transactional, he may believe that he stands a better chance with the conservative majority on the Supreme Court. However, the Supreme Court has shown little enthusiasm for getting involved in many of Trump's most politically charged cases.
Bradley Moss, a national security lawyer, expressed doubt about the likelihood of the case being taken up and stated that he would be genuinely surprised if it were. In an interview on CNN Max, Moss emphasized that the Supreme Court should not be solely relied upon as a means to challenge rulings that individuals may disagree with. However, he also acknowledged that if the case were to result in a loss, it could potentially serve as a significant political issue for discussion.
That, after all, is the common thread behind many of Trumps legal appeals, challenges and defenses.
