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Is anyone listening to the oral arguments in the appellate court about the Trump gag order in the D.C. case?
https://www.youtube.com/USCourtsCADC
Right now the appellate court is asking about Trump naming witnesses who are not public figures and the interest of the trial court to protect the integrity of the trial.
This is a place where the gag order is strongest.
They are disputing which test should apply.
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I moved to Mastodon.social
I hope anyone listening comes away at least with this: These issues are not easy or straightforward.
Almost all the issues Trump raises in court are silly or without basis.'
This is probably the first issue I have seen Trump raise in court that is not a slam dunk in the Trump Will Lose Department.
The court pointed out (subtly through a question) that there is something wrong with the idea that the moment an indictment is filed, a defendant loses First Amendment rights.
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Tea leaves: The word "target" is too vague.
More tea leaves: Public figures will be excluded.
Now the issue is whether line prosecutors are public figures.
Next issue: What about witnesses who are also public figures? What if they are writing books about Trump? Is it fair to say Trump can't respond?
The standard the government is offering right now might be too vague.
Also the government's suggestion that Trump should be limited to what other defendants say doesn't work.
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The issue here is that the word "target" in the gag order is too vague when applied to the prosecutors, who are public figures.
Actually, the government is also staking out an extreme position which is that if Trump thinks that the prosecutor is politically biased, he can file a motion but can't say it in the media.
Reading the tea leaves, it appears that that the gag order will stand with numerous modifications.
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The reality is that the panel of justices probably drafted their opinion and they are right now poking the lawyers to see where their decision might be weak.
They're also pressing the government lawyer as hard as they pressed Sauer.
Also, the judge did throw in earlier that there are strong First Amendment protections for Trump.
Now they're talking about Trump naming the special prosecutor himself, which is more difficult under the First Amendment because he's a public figure.
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Hypothetical: It is public record that Pence is going to testify the next day. Can Trump tweet out, "Pence can still do the right thing if he says the right stuff tomorrow."
Court: Is this communicating with the witness?
Lauer said "no"
OH MY. Yikes. He won't give an inch.
The government lawyer is up, and he is also talking too fast. (Signs of overpreparing?)
They're talking about court staff, which is an easier issue.
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The Court is now trying to figure out how to revise the gag order to take care of vagueness and prior restraint issues.
Reading the tea leaves: The Court seems to be acknowledging that there are portions of the gag order that need to be tweaked to address vagueness and issues of prior restraint.
The court keeps talking about "prophylactic remedies," which gets us to prior restraints, which are problematic, which is why this is going on and on.
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Here is what is gong on:: There is a gap in the law. The court has to write test because there isn't one.
There is no legal test because in the past, it was the lawyers who had to be silenced.
No defendant has challenged the routine gag orders that are applied.
The difference is an important one: Lawyers can be silenced because they are officers of the court and different rules apply to them.
The appellate court wants to come up with a test that will withstand SCOTUS scrutiny.
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