Prosecutors and lawyers for former President Donald J. Trump clashed Monday in a federal appeals court in Washington to debate the validity of the silence order imposed on Mr. Trump in the criminal case. accusing him of plotting to overturn the 2020 election.
The hearing before the United States Court of Appeals for the District of Columbia Circuit followed more than a month of debate over the order. It was put in place by the trial judge in October to prevent Mr. Trump from slandering or threatening prosecutors, potential witnesses or court employees involved in the case.
From the start, silence has led to a momentous conflict over how to protect those involved in Mr. Trump’s election interference case against the blockade while preserving his rights as he campaigns for president and claims the prosecutions are political persecution.
When Judge Tanya S. Chutkan, appointed by President Barack Obama, first imposed the order, she attempted to thread that needle by prohibiting Mr. Trump from going after anyone connected to the affair – with the exception of itself – while allowing him to say what he wants about what he asserts, this is the partisan and retaliatory nature of the affair.
Mr. Trump’s lawyers appealed the order almost as soon as it was imposed, calling it “the very essence of censorship.”
Each of the three appeals panel judges assigned to the case was appointed by a Democratic president: Judges Patricia Millett and Cornelia Pillard were both appointed by Obama, and Judge Brad Garcia was appointed by President Biden.
In court papers, Mr. Trump’s lawyers told the appeals court that the order should be repealed because it violates the First Amendment. They also said it represented an effort by Judge Chutkan to “micromanage” Mr. Trump’s “core political speech” before and during a trial expected to begin in March, in the middle of the Republican primary season.
Prosecutors working for Jack Smith, the special counsel overseeing the federal prosecution of Mr. Trump, countered by saying that courts have broad discretion to limit statements made by criminal defendants. They say the silence was particularly necessary because of Mr. Trump’s “near-daily” attacks on Mr. Smith, Judge Chutkan and potential witnesses in the case, including former Vice President Mike Pence and General Mark A. Milley, former Vice President Mike Pence. Chairman of the Joint Chiefs of Staff.
Prosecutors have tried to position themselves as protectors of both the integrity of the judicial process and the people who participate in it, arguing before the appeals court that Mr. Trump’s threats on social media have sometimes had harmful effects in the real world.
It’s unclear how quickly the appeals court’s three-judge panel will decide whether to overturn the silence order or keep it in place as the case nears a trial date. The silence order has been pending for about two weeks as the court received documents from the defense and prosecution.
If the order is upheld and comes back into effect, Judge Chutkan could face an even more difficult question: how to enforce the executive order if Mr. Trump violates it. A violation of a silence order is treated as a matter of contempt of court, which may result in a reprimand, fine or imprisonment. But how this would play out is complicated.
There are two types of contempt: civil, which is generally used to compel future compliance with an order, such as having a recalcitrant witness testify; and criminal, which aims to punish past non-compliance with an order. Typically – but not always – judges have treated violations of silence orders as the latter type.
In the Federal Court, judges cannot unilaterally impose a fine or order the imprisonment of a person for criminal contempt. Rather, such a charge is treated as a new offense that requires the appointment of a prosecutor and another trial – including the right to a jury decision.
The battle over the federal silence order comes as a New York state appeals court considers the merits of two related silence orders imposed on Mr. Trump by Judge Arthur F. Engoron, who oversees his civil fraud trial in Manhattan.
These orders – which are also currently suspended – would prohibit Mr. Trump or any of his lawyers from targeting Judge Engoron’s law clerk. The clerk has faced repeated attacks from the former president and his allies, who accused her of being a Democratic partisan.