Jeenah Moon / Bloomberg via Getty Images file "There's a balance that has to be undertaken here, and it's a very difficult balance in this context," she said, adding, "We have to use a very careful scalpel here." Former President Donald Trump leaves court in New York on Nov. "But he can't say 'liar'?" Millet continued. Can he say that person's an 'untruth speaker'?" Millet asked. VanDevender said Trump could say a public figure who'd be testifying against him had said something that's "untrue" but couldn't call the person a "slimy liar." The judges also questioned where the line existed on how Trump would be entitled to defend himself, but only to a point. When the judges said they were skeptical that Trump's posts would affect Milley's testimony, VanDevender said they could have an effect on other witnesses who are testifying. She noted that Trump issued a scathing post-indictment social media post about Milley a day after he had blasted Trump in an interview. Mark Milley, the former chairman of the Joint Chiefs of Staff, who has been highly critical of Trump. The same judge also questioned the gag order's protection of criticism of potential witnesses like retired Gen. One of the judges said Smith most likely has "thick enough skin" not to be intimidated by such posts. Smith's attorney Cecil VanDevender told the judges that his office has “been subject to multiple threats” and “intimidating communication” after Trump issued "inflammatory posts" about Smith. The judges seemed skeptical of that argument, but they also had questions for Smith's office about the scope of the gag order, including how it protects Smith and his team. “I’d have to know more about the context,” he said, adding it would be "further afield" if he made such a remark on social media.Īsked whether there was any need to balance Trump's political speech with concerns over threats, Sauer said Trump should be entitled to "absolute freedom" to speak his mind. “If he’s communicating with the American electorate?” Sauer replied. The judge then asked whether that dynamic would change if Trump made a similar remark on social media or at a political rally. Sauer responded that that could be a violation of his bail conditions and most likely wouldn’t trigger constitutional issues. Judge Patricia Millet asked whether there was a First Amendment concern related to Trump's hypothetically calling witnesses and telling them to be loyal. Judge Bradley Garcia, the Biden nominee, asked Sauer, “Why does the district court have to wait and see, and wait for the threats to come, rather than taking a reasonable action in advance?” Pressed by one about prosecutors' argument that Trump's public comments about witnesses and officials have led to people being "threatened and harassed," Sauer said, "That's all based on evidence that's three years old." He said that Trump has commented on the case "incessantly" and that there's no evidence that anyone in the election interference case has been threatened. The judges - two nominated by former President Barack Obama and one by President Joe Biden - issued an order this month pausing the gag order until they could hear arguments in the appeal. John Sauer argued that leaving the gag order in place would set a "terrible precedent" for "restrictions against core political speech." The hearing had been expected to last about an hour, but it went on for more than twice as long as the judges peppered both sides with questions. ET, with Smith, who made the decision to charge Trump, sitting in the front row. The two sides began presenting arguments in Washington before the three-judge panel of the U.S. Court of Appeals for the D.C.
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