CNN
—
Donald Trump may have found his legal challenge “heads, I win, tails, you lose.”
However the appeal of the ex-president ends against a limited gag order imposed in his federal election subversion case, he can expect an advantage. If Trump prevails — or if the three judges who heard the case Monday narrow the terms of the restriction — he could gain new leeway to attack special prosecutor 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 is being persecuted to destroy his 2024 campaign.
A ruling in Trump’s favor on the gag order — which was temporarily frozen while the appeal was heard — would have nothing to do with his four criminal trials and civil fraud trial underway in New York.
But that question, along with Monday’s hearing, provided a glimpse into the extreme institutional stress, political tensions and serious constitutional questions that await us next year, when the latest president and possible Republican Party nominee will fight for his freedom in several courtrooms while fighting to win back the White House. .
It is difficult to imagine how the justice system will escape the fate of other accountability institutions whose image was tarnished after seeking to contain or expose the ex-president’s unique type of rule-breaking.
The call for silence is closely tied to complex arguments over the scope of the First Amendment and the extent to which courts have the right to regulate its scope in order to protect their officers, their procedures, and the administration of justice .
The takeaway from Monday’s arguments is that the three judges — all Democratic appointees — appear likely to largely reinstate the limited gag order imposed on Trump by Judge Tanya Chutkan. The restrictions prevented Trump from attacking court staff, prosecutors or potential witnesses verbally or on social media. But that didn’t stop him from talking about the judge, the Justice Department, the case in general or his potential general election foe, President Joe Biden.
Trump’s legal team argued that any restrictions on his comments were an unconstitutional infringement on his right to free political expression. But judges must decide how much those rights can be restricted for a criminal defendant — who, in this case, allegedly tried to subvert the 2020 election. Trump has pleaded not guilty and claimed no wrongdoing in all cases brought against him.
The matter is complicated by the fact that Trump’s calling Smith “crazy,” for example, is more serious than complaining about his treatment. This is part of a long-term effort to delegitimize the justice system itself. Judge Patricia Millett of the Washington Circuit Court made this point when she told Trump’s lawyer, D. John Sauer, that calling all of Trump’s statements “fundamental political speech” raises the question of whether it is in fact a political speech or a political speech. aimed at derailing or corrupting the criminal justice process.
Trump’s legal arguments also appear to touch on another key question: Does his status as a politician provide him with an additional level of protection? His lawyers argued that the restrictions were all the more unjustified because they were imposed during a “hotly contested campaign for the highest office of the United States of America.” That presents the justices with a difficult balancing act in a case that not only concerns the courts’ ability to protect fair trials, but also touches on the integrity of the electoral system.
An overly restrictive order could hamper Trump’s ability to fend off political attacks on his candidacy — especially since his campaign is closely tied to his legal fight. And the decision made by the judges could resonate for years and affect future political candidates. But at the same time, the implication that a political candidate might be allowed to intimidate witnesses on social media in ways that an ordinary citizen would not raise raises another recurring question in Trump’s legal cases: that of equality before the law and whether he seeks special treatment. simply because of who he is.
“There are many legal issues that we’ve talked about in the context of Donald Trump over the years (and) nothing is more difficult for judges to resolve than the First Amendment and these free speech issues,” CNN legal analyst Elliot Williams said. “At some point a judge has to step in and decide almost arbitrarily what is acceptable and what is not. They were clearly struggling with this for hours and hours.
Given the tightrope the justices are walking, it is difficult to see how these questions can be fully answered without causing damage to American institutions. But Trump’s willingness to open them shows that, as usual, he is content to put his political goals ahead of America’s democratic foundations.
Trump’s relentless attacks on the legal process reflect another unprecedented aspect of the presidential election campaign, which dominated Monday’s hearing. Because he could be embroiled in criminal trials for much of the next year, Trump wants to take every opportunity to use the justice system as a political fighting platform. It also gives him a cause that resonates with his most loyal supporters: he defends them against what he presents as a militarized justice system.
The ex-president appears to view such a narrative – ideal for raising campaign cash that he uses in part to pay his legal bills – as his best way to anger Republican voters, which could help him to be re-elected. (A second presidency could also give Trump the ability to delay or stop some of the federal prosecutions against him.)
The ex-president is already seeking to use the courtroom as a political platform in the civil trial against him, his adult sons and his business in New York. During his appearance on the witness stand two weeks ago, Trump infuriated Judge Arthur Engoron with lengthy and political responses to narrow evidentiary questions. “This is not a political rally. It’s a courtroom,” Engoron said at one point.
The question of silence in the federal election subversion case also sheds new light on an ongoing 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 just before his mob broke into the U.S. Capitol and attempted to prevent the certification of elections on January 6, 2021.
The possibility that Trump’s ferocious attacks on potential witnesses, court staff, and others could result in real harm, even if not explicit, seems very real. Just last week, a Colorado judge ruled that the former president “engaged in an insurrection” after the last election, while admitting that she did not have the power to bar him from the primary vote in the Rocky Mountain State.
The question of incitement is not a hypothetical question in the silence affair. Trump has previously repeatedly attacked former Vice President Mike Pence and former Chairman of the Joint Chiefs of Staff Gen. Mark Milley on social media. He even suggested that the recently retired military officer be executed for treason. The two men could be key witnesses in the federal election subversion case and will therefore be entitled to the court’s protection – even though Trump may view them as political critics at a time when he is locked in the heat of a political campaign.
History suggests that if Trump loses this appeal, he will view the outcome as evidence of an attempt by Biden’s Justice Department to persecute him and seek to take the case to a higher court. Given his transactional view of the legal system, he might think he would have better luck with the Supreme Court’s conservative majority. But the top brass haven’t shown much interest in meddling in many of Trump’s most politicized affairs.
“I don’t even think they will accept it. I’ll be very surprised if they do,” national security lawyer Bradley Moss said Monday on CNN Max, adding that the Supreme Court is “not just your safety valve every time you get a ruling that doesn’t please you.”
But Moss also suggested the case would be “a big political talking point if they lose.”
After all, it’s the common thread running through many of Trump’s appeals, challenges, and legal defenses.
