This case could provide Donald Trump with his “heads I win, tails you lose” judicial challenge.
A limited gag order was placed on the ex-president in his federal election subversion case, and he is appealing it. Trump may have more leeway to trash special counsel Jack Smith’s case against him if he wins the case or if the three judges who heard the case Monday modify the parameters of the ban. Given the tenor of the hearing, Trump is expected to lose, and if he does, he will have new ammunition to use in his claim that he is being persecuted in an effort to derail his 2024 presidential bid.
Even if Trump were to win the gag order appeal, it would pale in comparison to the four criminal prosecutions and the ongoing civil fraud trial he is facing in New York.
A year from now, the former president and potential GOP nominee will be fighting for his liberty in multiple courtrooms while battling to win back the White House. Monday’s hearing was a preview of the extreme institutional stress, political tensions, and grave constitutional questions that will arise then.
It’s difficult to imagine the judicial system avoiding the same fate as other accountability institutions that tried to rein in or expose the ex-president’s special brand of rule breaking and ended up with soiled reputations.
What Trump’s aggressive challenge to accountability reveals about the gag order case
Complex considerations regarding the First Amendment’s reach and the courts’ authority to limit that reach in order to safeguard their officers, processes, and the fair administration of justice are entangled in the appeal of the gag order.
The three judges, all selected by Democrats, seem likely to reinstate Judge Tanya Chutkan’s limited gag order on Trump, according to the arguments presented on Monday. Trump was unable to publicly or verbally insult court personnel, prosecutors, or possible witnesses due to the constraints. He continued to rant about the judge, the Justice Department, the case in general, and his possible general election opponent, President Joe Biden, despite their warnings.
Trump’s legal team argued that any limits on the president’s ability to express his views on political matters violate his First Amendment rights. However, the court must consider how much of a defendant’s rights can be limited in the instance of a criminal defendant, who in this case is accused of trying to disrupt the 2020 election. In every prosecution against him, Trump has steadfastly maintained his innocence and pled not guilty.
The situation is compounded by the fact that Trump’s lambasting of Smith as “a lunatic,” for example, is more severe than just crying over his treatment. It fits into a long-term effort to delegitimize the legal system itself. DC Circuit Court Judge Patricia Millett made this point when she told D. John Sauer, Trump’s attorney, that labelling all of Trump’s utterances “‘core political speech’ begs the question of whether it is in fact political speech, or whether it is political speech aimed at derailing or corrupting the criminal justice process.”
The question of whether or not Trump’s official political position affords him any additional legal protection appears to be at the heart of his legal arguments as well. Legal representation for him said that the limits were even more unreasonable considering that they were put in place during “a hotly contested campaign for the highest office in the United States of America.” In a case that bears not only on the ability of courts to safeguard fair trials but also touches on the integrity of the voting system, the judges face a difficult balancing act.
Since Trump’s campaign and legal battle are interwoven, an unduly restricted ruling might hinder his ability to defend against political accusations against his candidature. And the courts’ ruling could have far-reaching effects on future political hopefuls. Another recurring theme in Trump’s legal cases is whether or not he is seeking preferential treatment because of his celebrity status. The suggestion that a political candidate could be allowed to intimidate witnesses on social media in a manner that a regular citizen would not raises this issue.
AWN legal analyst Elliot Williams stated, “There are many legal questions we have talked about in the context of Donald Trump over the years, and nothing is harder for judges to sort out than the First Amendment and these free speech issues.” A judge must eventually intervene and make a seemingly arbitrary ruling on what is and is not legal. They had obviously been thinking about this for a long time.
It’s difficult to see how these concerns can be adequately answered without some damage to US institutions, given the tightrope the judges are walking. But Trump’s readiness to release them demonstrates, as usual, that he is ready to prioritise his political ambitions over the democratic foundation of the United States.
Unprecedented voting results
Trump’s relentless attacks on the judicial process were another unprecedented feature of a presidential election campaign that hung over the hearing on Monday. Trump is eager to exploit the judicial system as a platform for a political struggle because he may be preoccupied with criminal proceedings for much of the next year. It also offers him a cause that resonates with his most ardent fans – that he’s defending them against what he casts as a militarised judicial system.
The ex-president seems to regard such a narrative — excellent for raking in campaign donations he’s partly using to pay his legal fees — as his best opportunity at stoking resentment among Republican supporters that could help him win reelection. (A second term in office may also provide Trump the leverage he needs to stall or perhaps dismiss some of the federal lawsuits pending against him.)
The civil action against the ex-president, his adult sons, and their corporation in New York has already seen the former head of state attempt to use the courts as a political platform. Trump angered Judge Arthur Engoron two weeks ago when he took the witness stand and answered restricted evidentiary questions with lengthy and political replies. “We are not holding a political rally. At one point, Engoron remarked, “This is a courtroom.”
Concern that Trump’s words could encourage violence has been a persistent theme, and the gag order problem in the federal election subversion case throws additional light on this. After all, he is a former president who urged his followers to “fight like Hell” for their nation just before his mob stormed the US Capitol on January 6, 2021, in an attempt to prevent the election results from being certified.
Even if Trump is not overtly threatening, his vehement attacks on potential witnesses, court officials, and others raise serious safety concerns. A judge in Colorado just last week argued that the former president “engaged in an insurrection” after the last election, despite the fact that she acknowledged she lacked the authority to prevent him from appearing on the primary ballot in the Rocky Mountain State.
Concerns about possible incitement are not hypothetical in the gag order trial. Trump has previously tweeted many attacks against former VP Mike Pence and former Chairman of the Joint Chiefs of Staff Gen. Mark Milley. He went as far as to advocate for the treasonous former head of state’s execution. Even while Trump may consider them fair game as political adversaries at a time when he is caught in the heat of a political campaign, both individuals could be essential witnesses in the federal election subversion case and will therefore be entitled to the protection of the court.
If Trump loses this appeal, he will likely continue to claim that he is being persecuted by the Biden Justice Department and will seek to take the issue to a higher court. Given his transactional perspective of the legal system, he may reason he’d have better luck with the conservative majority on the Supreme Court. But the top bench has not showed much desire in becoming engaged in many of Trump’s most politicised issues.
No way in hell do I see them picking that up. The Supreme Court is “not just your safety valve whenever you get a ruling that you don’t like,” national security attorney Bradley Moss said on Monday’s AWN Max. “I will be very surprised if they do.”
The lawsuit, Moss argued, will be “a great political talking point if they lose.”
This is the central argument in many of Trump’s court filings, motions, and briefs.