The Court of Appeals held a hearing Monday about whether to reinstate the gag order imposed on former President Donald Trump blocking him from disclosing certain information about the trial and attacking or threatening court officers in the 2020 federal election interference case — and Trump's attorney, John Sauer, stumbled as the judges demanded he explain his legal position.
The case was heard by a three-judge panel consisting of Judges Patricia Millett and Cornelia Pillard, appointed by President Barack Obama, and Judge Bradley Garcia, appointed by President Joe Biden.
Sauer argued that the terms of the gag order, first imposed by District Judge Tanya Chutkan, went overbroad and were a violation of the former president's constitutional rights, claiming that Trump's arguments did not constitute a "clear and present danger."
But Millett challenged Sauer, saying that under case law there is a distinction between participants and outsiders, and wouldn't the former have a stronger standard? Sauer danced around the question, and a frustrated Millett said, "You can't give me anything."
She then pointed out that even stipulating to Sauer's view, there is extensive Supreme Court law saying that, "Clear and present danger isn't mean to be a mechanical process, it's a balancing test" between the defendant's rights and the risks of their conduct.
Later in the questioning, Pillard asked Sauer to distinguish whether, if it's permissible to punish Trump from calling a witness on the phone and telling them, "I know you're a patriot, and patriots don't talk to prosecutors," it would be permissible to punish Trump for saying the exact same thing on social media or at a public rally.
Sauer dodged the question, insisting that Trump had not said any such thing, even as Pillard clarified that "it's a hypothetical!"
