Donald Trump may have found his “heads-I-win, tails-you-lose” legal challenge.
However the ex-president’s appeal ends against a limited gag order imposed in his federal election subversion case, he can expect a benefit. If Trump prevails – or the three judges who heard the case Monday narrow the terms of the restriction – he may gain new leeway to attack special counsel Jack Smith’s case against him. If Trump loses, as seems likely given the tone of the hearing, he will have a new talking point for his narrative that he’s being persecuted to destroy his 2024 campaign.
A judgment in Trump’s favor on the gag order – which has been temporarily frozen while the appeal is heard – would pale against his four criminal trials and his current civil fraud trial in New York.
But the issue, and Monday’s hearing, provided a preview of the extreme institutional stress, political tensions and grave constitutional questions ahead next year when the most recent president and possible GOP nominee fights for his liberty in multiple courtrooms while battling to win back the White House.
It’s hard to see how the legal system escapes the fate of other institutions of accountability whose images have been tarnished after seeking to contain or expose the ex-president’s unique brand of rule breaking.
The gag order appeal is entwined with complex arguments on the breadth of the First Amendment and the extent to which courts have the right to regulate its scope in order to protect their officers and proceedings and the administration of justice.
The takeaway from Monday’s arguments was that the three judges – all appointed by Democrats – appear likely to largely restore the limited gag order on Trump imposed by Judge Tanya Chutkan. The restrictions prevented Trump from attacking court staff, prosecutors or potential witnesses verbally or on social media. But they didn’t stop him from venting about the judge, the Justice Department, the case more generally or his potential general election foe, President Joe Biden.
Trump’s legal team argued that any restrictions on his comments represent an unconstitutional assault on his rights to freedom of political speech. But the judges must decide the extent to which those rights can be curtailed for a criminal defendant — who in this case allegedly attempted to thwart the 2020 election. Trump has pleaded not guilty and maintained no wrongdoing in all of the cases against him.
The case is complicated by the fact that Trump’s lambasting of Smith as “a lunatic,” for example, is more serious than just whining over his treatment. It fits into a long-term effort to delegitimize the justice system itself. DC Circuit Court Judge Patricia Millett made this point when she told Trump’s counsel, D. John Sauer, that labeling 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.”
Trump’s legal arguments also appear to be touching on another vital question: does his status as a politician offers him an extra layer of protection? His lawyers argued that the restrictions were even more unjustified given that they were imposed during “a hotly contested campaign for the highest office in the United States of America.” This presents the judges with a tough balancing act in a case that does not just bear on the capacity of courts to protect fair trials but also touches on the integrity of the electoral system.
An overly restrictive order could hamper Trump’s capacity to repel political attacks against his candidacy – especially since his campaign is so intertwined with his legal fight. And the decision the judges make could echo for years to come and affect future political candidates. But at the same time, the implication that a political candidate could be allowed to intimidate witnesses on social media in a manner that a regular citizen would not raises another perennial question in Trump’s legal cases – of equality under the law and whether he’s seeking special treatment simply because of who he is.
“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,” said Elliot Williams, a CNN legal analyst. “At some point, a judge has to step in and almost arbitrarily decide what is okay and what isn’t. They were clearly grappling with this over hours and hours.”
Given the tightrope the judges are walking, it’s hard to see how these questions can be fully answered without some ensuing damage to US institutions. But Trump’s willingness to open them shows that, as usual, he’s content to put his political goals over America’s democratic foundation.
Trump’s incessant assaults on the judicial process reflect another never-before-seen aspect of a presidential election campaign, which loomed over Monday’s hearing. Because he could be tied up with criminal trials for much of the next year, Trump wants every opportunity to use the legal system as a platform for a political fight. It also gives him a cause that resonates with his most loyal supporters – that he’s defending them from what he spins as a weaponized justice system.
The ex-president seems to view such a narrative — ideal for raking in campaign cash he’s partly using to pay his legal bills — as his best shot at creating anger among Republican voters that could help him win reelection. (A second presidency could also equip Trump with the capacity to delay or halt some of the federal cases against him.)
The ex-president is already seeking to use the courtroom as a political platform in the civil case against him, his adult sons and his company in New York. In his appearance on the witness stand two weeks ago, Trump infuriated Judge Arthur Engoron with lengthy and political answers to narrow evidential questions. “This is not a political rally. This is a courtroom,” Engoron said at one point.
The issue of the gag order in the federal election subversion case also sheds new light on a consistent concern about the impact of Trump’s rhetoric and the extent to which his statements could incite violence. This is, after all, a former president who told his supporters to “fight like Hell” for their country immediately before his mob smashed its way into the US Capitol and tried to halt certification of the election on January 6, 2021.
The possibility that Trump’s fierce attacks against potential witnesses, court staff and others could lead to actual harm, even if he is not explicit, seems very real. Only last week, a judge in Colorado argued that the ex-president “engaged in an insurrection” after the last election even while conceding she lacked the power to bar him from the primary ballot in the Rocky Mountain State.
The incitement issue is not a hypothetical one in the gag order case. Trump has already attacked former Vice President Mike Pence and the former Chairman of the Joint Chiefs of Staff, Gen. Mark Milley, multiple times on social media. He even suggested that the recently retired top military officer be executed for treason. Both men could be key witnesses in the federal election subversion case and will therefore be entitled to the protection of the court — even if Trump may consider them fair game as political critics at a time when he’s locked in the heat of a political campaign.
History suggests that if Trump loses this appeal, he’ll both brand the outcome as proof of an attempt by the Biden Justice Department to persecute him and seek to elevate the case to a higher court. Given his transactional view 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 shown much interest in becoming embroiled in many of Trump’s most politicized cases.
“I don’t even think they will take it up. I will be very surprised if they do,” said Bradley Moss, a national security lawyer, on CNN Max on Monday, adding that the Supreme Court is “not just your safety valve whenever you get a ruling that you don’t like.”
But Moss also suggested that the case will make “a great political talking point if they lose.”
That, after all, is the common thread behind many of Trump’s legal appeals, challenges and defenses.