Trump’s D.C. Gag Order Hearing 02:17:52

Oh, yay, oh, yay, oh, yay. All persons having business before the honorable, the United States Court of Appeals for the District of Columbia Circuit are admonished to draw near and give their attention, for the court is now sitting. God save the United States and this honorable court. Be seated, please.

Case number 23-3190, United States of America v. Donald J. Trump. Mr. Sauer for the appellant, Mr. Van de Vender for the appellee. Thank you, Your Honor. I may please the court. John Sauer appearing on behalf of the appellant, President Donald J. Trump.

Gag order in this case installs a single federal district judge as a filter for core political speech between a leading presidential candidate and virtually every American voter in the United States at the very height of a presidential campaign. The order is unprecedented, and it sets a terrible precedent for future restrictions on core political speech.

The Supreme Court said in Republican Party of Minnesota against White that we have, quote, never allowed the government to prohibit candidates from communicating relevant information to voters. And it's not the role of the government to dictate what topics are appropriate or necessary to discuss in the context of a political campaign. The gag order does both of those things.

Cases involving gag orders imposed on criminal defendants were political candidates, the Brown and Ford decisions, have both given, in the words of Brown, the candidate, quote, absolute freedom, virtually unrestricted ability to comment on both the case in front of him and make public statements that relate to his campaign as it relates to the case.

So this is a radical departure from the only cases that have considered this particular form of restriction. A restriction on a criminal defendant who is also campaigning for public office. And it does so in the context of a hotly contested campaign for the highest office in the United States of America.

In addition, the gag order, another unprecedented break with jurisprudence, relies completely on an insupportable heckler's veto theory. The gag order does not say, hey, your statements are going to poison the jury pool by communicating directly with the

the members of the jury pool. What you have here is a rationale that says this speech, the speech that is targeted by the gag order might, there's no evidence of this, but it might someday inspire some random third party to engage in some action that might result in harassment or threats to witnesses. This is a quintessential heckler's veto.

which the Supreme Court has not traditionally subjected to scrutiny, even very strict scrutiny, but said is just categorically unconstitutional. And the reasons for that, if you look at the Heckler's veto cases, in virtually every case, the argument justified in the Heckler's veto is we have an absolutely compelling reason to do this, because the speech that we want to suppress...

is going to inspire rioting, violence, injury, death, whatever it is, and the Supreme Court has said again and again, you cannot do that. All the gag order cases relied on the government do not address this particular heckler speech, so kind of rationale for criminalizing speech.

And the Supreme Court has held again and again that that is not a permissible rationale to silence anyone. Those cases go back decades, and that government rationale goes back to at least the city of New York in the 1860s. Would your position be any different if it were a year ago? If the time were just a year ago, so we're much further removed from a political campaign?

Would your position be the same or different? Certainly a year ago, we would still be in the midst of a political campaign. I believe President Trump. Why are we not in a political campaign? I don't mean to fight the hypothetical, but if you're saying that it was made a year ago, it was a year ago. It was last November at a time when he was not a presidential candidate. All the other rationales certainly still engaged in political speech. Absolutely. Core political. So would your position be any different?

A year ago. I think the gag order would still be unconstitutional. Would your position be any different? I don't see how it would be. Okay, so the fact that we have a campaign going on does not matter. What matters to you, and this is still political speech, which gets very high protection, no doubt.

I wouldn't put it that way. I think that the fact that the campaign-- and we have a whole series of-- Your position would be no different if it were a year ago. Our position would be that it's still unconstitutional, but the campaign adds a digital and very powerful reason why it is unconstitutional. But it's icing on the cake as far as you're concerned. Your position would be exactly the same without a

political campaign? I would say it's the crown jewel of a series of at least seven fundamental precepts. You need a crown jewel? I mean, you think the outcome should be exactly the same, whether or not there's a political campaign underway. Yes, I believe there are at least seven independent First Amendment precepts that are violated by this gag order. Campaign speech is one of them. Heckler's veto is another one. So, for example, a year ago, we would still, if we had the same gag order, we would still be dealing with a categorically invalid Heckler's veto type theory. We would still be dealing with core political speech.

Again, we would still be dealing with a situation where we have restriction on criticism of public figures. That violates the whole public figure doctrine. There'd be a whole series of reasons it would still be unconstitutional. However, one of the most power and compelling of those, I'm sorry, Your Honor. So, Mr. Sauer, you point to the fact that your client is in the midst of a campaign, but

I trust you agree that prior restraint is, no matter to whom it would apply, is subject to the highest level of constitutional scrutiny. That's your argument. Absolutely. And I also trust that you agree that your client is not above the law that applies to all other Americans.

He's subject to the First Amendment principally, but yes. He's subject to the law that applies to everyone. He's not above the law. We certainly haven't argued that, Your Honor. Right. And so the district court found that when the defendant has publicly attacked individuals, including on matters related to this case, those individuals are consequently threatened and harassed.

And we view that factual finding for clear error, right? No. In a First Amendment case, I believe, as we cited in our standard review section under Houston v. Hill, the court should engage in a plenary review of the record under de novo review. That is a mixed question of fact and law. But for the findings about what happened in the world, we look at that for clear error, and then we look at

the first amendment implications de novo. Looking at that particular finding, the court would have to look at it in light of the evidence in the record, which shows that that's all based on evidence that's three years old and has went against the fact that they have no evidence of any threats or harassment that have happened in this particular case, uh,

even arguably caused by the speech that's challenged here when the case has been pending for over three months and the defendant has made public comments about the case almost incessantly. So the government's position, and this is just for purposes of the question, and I know you don't accept this, but the government's position is that the district judge is not limited to looking only at the defendant's speech as it relates to this case, but the government identified a dynamic

not just exclusive to this case, whereby when the defendant has publicly attacked individuals, including but not limited to the facts of this case, those people are threatened and harassed. If we were satisfied, and I know you're not satisfied, but if we were satisfied that evidence supported that finding, what more would be needed in your view? What more would be needed to support

the district court's order or an order. I would quote from Landmark Communications and its quotation from Pen and Camp against Florida, which is that the standard that has to apply to a gag order applying or even its restriction on speech that relates to criminal proceedings

is that the substantive evil that must be addressed must be extremely serious, and the degree of eminence must be extremely high, not remote or even probable, but imminently impending, and all that has to be proven by, quote, solidity of evidence. And when you have a situation, you use the phrase including but not limited to. The fact that we have here is no evidence at all.

of threats or harassment in this particular case. All the evidence of threats and harassment go back three years ago to a totally different political dynamic. And this points out another problem with this sort of heckler's veto third party argument, which is that they can't draw a causal line from any social media posts, any threat or harassment, when

We have wall-to-wall media coverage of this case. Talking heads on social media and on cable news and on network news are talking about it all the time. Again, I know that you dispute this and you think that the record is inadequate.

Were the record indisputably adequate to support a finding of a dynamic that when people are named, and as you point out, this is a defendant who has millions of social media followers. So when people are named on that social media, people are threatened and harassed. And also assume, for purposes of my question, that the threats don't rise to the level of a true threat that would be unprotected by the First Amendment. But we're talking about

In this case, I think some are trying to protect against threats that wouldn't be excluded from First Amendment protection. In that situation, non-public figures who are witnesses-- non-public figures who are going to be witnesses-- what about the interest of the court in a fair and impartial trial is insufficient to protect those witnesses from

That dynamic results predictably in harassment. Let me say at least three things in response to that. First of all, a fundamentally dynamic strikes me as a way to bake in speculation and hypothetical as a substitute for evidence. So if the district court said, I find a dynamic, I think that would be deeply problematic. It would have to be probed to see what the actual evidence was.

Secondly, as the question of sort of witnesses who are not public figures, there is no evidence of a single post about them in this particular case. So that piles hypothetical and speculation upon speculation. We've cited the Collins decision for saying you can't restrict speech based on secondary effects. That's like tertiary or quaternary effects. I don't even have an adjective for how many steps removed it is. And again, that's actually right there on JA 230, right there in the rationale of the district court judge is, well,

We don't have any threats or harassment in this case, even though we've had wall-to-wall media coverage of it and wall-to-wall public statements going back for three months. But there might some may be threats or harassment to the only public figures that they've identified who are the highest echelons of government. I was actually focusing for a reason on non-public. And just to make your position, just to challenge you a little more.

The order is intentionally prophylactic. It's intentionally protective against harms that have yet to occur. And in the distinctive context of protecting the integrity of a trial process, that can be a sufficient interest.

The standard is... For a suppression of speech. This is prophylactic in the situation where the solidity of the evidence shows an imminently impending danger. We are nowhere near that in this particular case. And as I was saying about non-public figures, there's no evidence of any statement in this case that relates to any non-public figure. So again, you're piling. That would be... And in fact, the district court did that in this case. Counsel, I think the concern is that...

it seems at times your position would be that the district court's hands are tied until we actually know there has already been harm to the integrity of the trial. For example, that a witness has been intimidated. And so I think the questions we're trying to get at

What evidence short of that, you certainly can't be saying that's what we need. What evidence short of that would the district court need before it could step in and enter an order like this? Solidity of evidence that demonstrated an imminently impending threat. And again, that's...

Supreme Court case law-- I think we're going back to the legal standard. You mentioned the Fifth Circuit's decision in Brown. And that court rejected the argument you're making today, which is essentially that the district court has no authority to regulate the speech of a criminal defendant unless it's entirely unprotected by the First Amendment. And what the Fifth Circuit said, drawing on Gentile and even the Landmark Communications case, is that the Supreme Court has drawn a distinction

between speech restrictions on those who are participants in the trial and those who are strangers to it. I believe that's essentially a direct quote from Gentile. So what's your best argument that criminal defendants shouldn't be treated as within that category of

participants in the trial. If you look at Justice Rehnquist's opinion in genteel, it's 12 pages in section 2. Which was not a controlling opinion. The controlling opinion is Justice Rehnquist on the legal standard. Exactly right. I'm talking about section 2 of that opinion is the controlling opinion of the court. It goes on for 12 pages about the specific, I mean, again and again and again, it's all about the special roles of attorneys. And it says attorneys are officers of the court.

Attorneys can be subjected to particular restrictions that it directly contrasts with, for example, the rights of ordinary citizens or the common rights-- It also talks about-- I'm sorry. It also talks about participants. And there are a number of Supreme Court cases that distinguish participants

in a criminal trial from those who are outsiders to the criminal trial. Would you at least agree that there is that language in Supreme Court cases? There is some language, but I-- There is that language in Supreme Court cases, correct? Not language that would tie participants to the substantial likelihood of material prejudice standard. We do-- I just want to be a little more precise about this. So the quote from Gentile--

is there's a distinction between restrictions on the speech of those participating in the litigation and strangers to it. And it goes on to say of Shepard, the sort of canonical case about a trial court's obligations, quote, "We expressly contemplated that the speech of those participating before the courts could be limited." You mentioned landmark.

It's that concern a sanction on the press and footnote 9 of that opinion says if this was limited to those who participated in the proceedings it might well save the statute. And our job here is to read these Supreme Court cases and it seems like they're drawing a very clear line of participants

I don't hear anything or see anything in any of that language that says therefore you're subject to the substantial likelihood of material prejudice test. And we do dispute that. But even if that test applies, you would have to have much, much more evidence. Keep in mind that Justice Kennedy's plurality opinion in G.N.T.O. emphasizes that the whole point of the substantial likelihood of material prejudice test was to approximate the clear and proven danger test that we say applies.

And he says the difference between those is likely mere semantics. Whatever that standard means, it is an exacting standard that is not even plausibly satisfied. But if there is a different standard for participants as opposed to outsiders, if there is-- this is my question to you-- if there is a different standard for participants than there is for outsiders, so please take that premise.

There has to be something different from clear and present danger because then there would be no different standard for participants. So if we read these cases to mean what they say, there is a different standard for participants than outsiders to the proceeding. Do you have an argument as to what that standard should be

other than clear and present danger. This is sort of like your plan B. If you have it, if there's a different standard, what should it be? No one that I'm aware of has cited any case law that specifically addresses that question. That's why I'm asking you. We'll just...

To my mind, that's a powerful reason to adopt the clear and present danger stack. In other words, we say clear and present danger. They say substantial likelihood of material prejudice. No case at all adopts some intermediate standard between those two. Well, you just told me substantial likelihood is very close. And that's why there's nothing between them, right? Okay, so then substantial likelihood may be close enough.

The clear and present danger. If it's interpreted as we think it should be interpreted in light of the-- You haven't told us how it should be interpreted different from clear and present. If I'm telling-- I'm going to say this again. The answer is not clear and present with different labels. If there's something less than clear and present, otherwise there's no differentiation between participants and outsiders. So if there is something less than clear and present danger,

How would you articulate that? I am ready to write. The two standards approximate each other and I'm not aware of any case adopting anything in between. You don't have a standard? Correct. Our position is the clear and present danger standard. If that is not what we adopt,

then you have no other argument for us. I don't have, I would have to invent a standard. No, I'm asking, well sometimes that's what the law requires. So if we need to come up with something that still treats participants different from outsiders, and if outsiders get clear and present that necessarily means participants get something less, that's what this case is about. And you say, you know, the district court here applied the substantial likelihood test, so...

You've got nothing in between to offer us. I would say clear and present danger is the standard that applies. If the court applies substantial likelihood of material prejudice, it ought to take count of the effect that approximates the clear and present danger test. And the showing that was made in the district court here comes nowhere near satisfying either of those tests. Okay. And what would... We'll give you whatever time we'll let you know. When there's... In your definition or application of clear and present danger, and that's an incredibly strict test...

Is there any limitation on a participant's speech? What does it capture that is not already outlawed by 1512 or something else? What speech would be captured that isn't already illegal in your mind? Can you give an example of some speech that would be covered by your clear and present danger test that isn't, in fact, unlawful form of threats, harassments?

Well, the notion of harassment, as we said in the POPPA decision, raises the problem that some of the, quote, harassment may actually be First Amendment protected speech. So I don't think that would be it. Are there cases that would address speech that is not criminal? Right. In other words, you say 1512. Can you give me an example of some speech that is covered by your test that isn't already covered by the criminal law?

I can't think of a hypothetical as I stand here. So really your point then is that there can be no limitation on speech because his release conditions already forbid him to violate the law. The conditions of release... Forbid him to violate the law. That is correct. You can't give me an example of speech that could be regulated.

That doesn't violate the law. I'm thinking of all the social media posts, for example, that are... You can make one up. I'm asking you to make something up here and not really refer to something that happened. I'm not asking you to say that. I have trouble. I cannot think of a hypothetical that would not be a violation of the law because we're dealing with the heckler's veto scenario. No, no, because I'm just trying to make sure I understand. It may be right.

We're dealing with political speech here. But your position is that at least when a participant in trial is engaged in political speech, there can be no limitation imposed to protect the administration of justice in the criminal proceeding. No, that's...

the pre-existing prohibition against violating the law. No, that is not our position. Okay, you just got to give me an example. I've been asked for a hypothetical with no evidence at all to show how there might be some daylight between those two standards, and I frankly am thinking of all the social media posts at issue in this case and whatever else, whatever daylight there may be between those, these don't satisfy me. Well, this is a test that you've proposed, and so I'm trying to see if you have a conception of how it works that would allow a court to still protect...

the criminal proceeding beyond its prohibition on violating the law. And this is your test. And so it seems incumbent upon you to be able to explain to me what a court could do to protect the integrity of criminal proceedings that isn't already covered by a don't violate the law, don't violate the criminal law. Under Nebraska Press Association, the heavy burden of demonstrating, quote. That's not the, this is a whole argument. And you're here challenging an order.

And asking us to adopt a legal test, I mean, what's been crystal clear from the Supreme Court is they've even said many times recently, clear and present danger isn't a mechanical formulation. It's meant to be a balancing test, a test that balances the interest in speech, which you have explained are very high.

and the interests in protecting the integrity of the criminal process and the criminal proceeding, which is also a weighty constitutional interest. And so the reason I'm asking this question is to see if there's any balance, which is what the Supreme Court tells us to do, in the test that you proposed. And so tell me how it balances if you can't give me anything other than a criminal law violation that would satisfy your test.

The phrase I believe that the Fifth Circuit used in Brown, a case heavily relied on the government, is absolute freedom in the context of a political campaign. So there is no balance. Criminal speech, obviously, is subject to the restrictions. But core political speech, that is core political speech, that's part of campaign speech. I think that kind of labeling it core political speech begs the question of whether it is in fact political speech.

or whether it is political speech aimed at derailing or corrupting the criminal justice process. You can't simply label it that and conclude your balancing test that way. We have to balance.

Well, I think in the balance, the court should consider the fact that the issues at stake in the appeal are just absolutely inextricably, and in the gag order itself, not just the appeal, inextricably entwined with the issues that are being publicly debated in the context of the appeal.

The only evidence was that there was general press attention to the case, and it's sua sponte entered a very broad gag order. It then lifted that in the run up to the election, but the

the defendants then started sharing recordings relevant to the case with the press and the court stepped in and reimposed a limited form of the gag order. So my question is why isn't the analogy here to that second narrower gag order that the court entered in Brown? That's what happened here. The district court

didn't act rashly, it waited. Back in August it gave clear warnings to the parties not to make the type of statements that were at issue. That trend continued and now we have an order that's targeted at the exact types of statements that have been occurring.

So that's my question. In Brown, they did reimpose an order during the election. Yeah, looking at the facts at Brown, I believe it was other defendants, not the political candidate, who started leaking confidential transcripts and jury materials and giving interviews about them. The court reissued a gag order that basically said, don't release stuff you're getting through discovery that is otherwise confidential, which is totally different than the gag order we have here.

This is not a situation, we haven't disputed in this case that a district court could say, hey, you've gotten access to materials only through discovery. This is like the Seattle Times situation, and therefore you can't release those to the public. So then Brown goes on to say that he was given complete latitude to actually defend himself in the political arena.

which is the critical issue, which is one of the many critical issues at stake in this appeal. And it was given, and it says, it may well be the case that for the benefit of the electorate as well as himself, he has absolute freedom to discuss it. And keep in mind, the electorate there was people voting for a Louisiana insurance commissioner. Here we're talking about every voter in the United States of America. I do want to get to questions about the scope of what he's able to say, but just briefly back to the evidence.

You're certainly correct that most of the threats at issue, this pattern of statements followed by threats, is from 2020. But I think the link might be, and I wonder what your response is, that that was all about the same subject matter of this case. So essentially what the district court is finding is we have a past pattern. When the defendant speaks on this subject, threats follow. And now he's making similar statements again. We're months out from the trial. This is

predictably going to intensify as well as the threats. And so why isn't the district court justified in taking a proactive measure, not waiting for more and more threats to actually occur and stepping in to protect the integrity of the trial? There's an evidentiary burden here.

The evidence, actually, it isn't just that there's no evidence now. It's that the evidence we have now completely counteracts that inference because it is undisputed that President Trump has been posting about this case almost incessantly since the day it was filed, and they haven't come forward with a single threat that's even arguably inspired by any of his social media posts. The only threat they talk about in their brief is from the Shry decision, from the Shry case from the District of Texas. I strongly invite the court. Will counsel add a death threat to the

- The court judge in this case. - Right, Abigail Jo Schrey, that is the August 5th telephone call. If you pull, it's Southern District of Texas. - The day after he said, "If you come after me, I'm coming after you," that threat issued. - I strongly encourage the court to pull both the probable cause statement and the detention order from that case.

where there's evidence that that particular threatener, there's no evidence of any reading of social media, that particular threatener is an unemployed, mentally unstable, heavy alcoholic who sits on her couch drinking beer all day, according to her father, never leaves the apartment, watches the news.

not read things on social media, watches the news on TV, gets angry about it and makes angry threatening calls. So I'm sorry, counsel, this might have been partly my fault, but I just, I want to go back. Imagine all we had was the 2020 pattern. That evidence is very specific. It's about when the president speaks on this issue, events around January 6th, and that there are very specific threats that people receive.

And again, that was a time where, as you're saying, the atmosphere was very tense. As this trial approaches, the atmosphere is going to be increasingly tense.

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? Again, the standard is imminently appending, solidity of evidence. We have an inference from stuff that happened three years ago, countervailed, you know, contradicted by the evidence we actually have here, which is world of well, I mean, they are saying, oh, it's an imminent threat. Let me ask you, let me ask you, I,

Mr. Sauer, the conditions of release in this case prohibit your client from communicating about the facts of the case with any individual known to the defendant to be a witness, except through counsel or in the presence of counsel. Your client signed those conditions of release. Counsel before the district court was quite clear that

that was not being challenged, how under your analysis would those conditions of release not be invalid? Are you taking a position that those conditions of release violate the First Amendment? No, we have never challenged the conditions of release and the president has complied with them. How under your analysis...

Would they not be unconstitutional? Well, a violation of that condition of release may be the response to Judge Millett's question from earlier about whether that would be something, for example, that might not be criminal, but would be a clear and present danger to the administration. That would? I don't want mights. I'm really trying to understand your legal test. If he were to pick up the phone and call someone that is known to him to be a witness, prospective witness in this case, and speak with that person without counsel present...

Would that would violate the restriction undoubtedly? Would the First Amendment protect that communication under your test? We have not contended that. It's not what I am asking. I'm asking you to apply the test that you propose us because we have to write a test that can be applied and we have to know how it's going to be applied. So I'm asking your position, your legal position. Would that phone call be protected by the First Amendment or not?

Is it a phone call where it's what's said is happy Thanksgiving or is it a phone call where it's... I'm not telling you why because the order, the pre-release, the release restriction doesn't care about the content. So he picks up the phone and calls a witness in direct violation of the terms of release...

We do not contend that that would... I'm not contending. So that would not violate the First Amendment? That is allowed under the First Amendment? Yes, that's completely consistent with the positions we've taken in this case. And now if the next hypothetical is he gets on the phone and he says, X, Ms. X, you've always been someone, courage, backbone, a loyalist, a patriot. And, you know, loyalists and patriots don't talk.

to prosecutors in my case and hangs up. Okay, if he said that... I think that would be a clear violation of the terms of release. What if he instead gets on a stage somewhere or on social media and says that exact same thing? Ms. X, a public figure, is being bothered by the prosecutor.

The people who are loyal, honest patriots don't talk to the government. He hasn't said that. Please answer the question. I'm not suggesting he has said that. To be clear for the record, this is a hypothetical question. Does punishing that conduct, because he's not speaking directly to the witness. He's doing this on social media or at a town hall.

or a news interview, he says that, does it violate the First Amendment to say that's prohibited? If he's communicating with the American electorate about matters of-- I've told you the facts. OK, so your answer is no. I have to know more about the context of the statement? No, I've given you all the context you need to know. If he does it over the phone to the prospective witness, you've said First Amendment prohibits it. If he says it with a megaphone,

knowing that witness is in the audience, then you're very likely in the same scenario. Okay. And if he does it on social media, knowing that person's a social media follower of his...

Again, I think you're getting further afield and more into court political speech. But doesn't that have to be your answer? I mean, Legion are the cases that you have to agree, as you did with Judge Millett. Legion are the cases that say there's no right of a criminal defendant to try his case in the media. That's what the court is for. And of course what's difficult about this case is that there is some substantive overlap between

what the defendant wants to do in campaigning and what the prosecution here is doing in the case. But to the extent that there's an ability to distinguish between trying this case in the media and running for president, clearly he has no entitlement to do publicly what is well established. He could not do one-on-one to that witness. I would say two things in response to that. One is that there's not...

mirrors some overlap. There's near complete overlap between the issues in the case and the issues in the political campaign. Secondly, the whole statement in the case law that says you can't try your case in the media are all about cases that involve influence on the jury pool. And we don't have that rationale in this case because the district court expressly rejected that. You said that there's a complete overlap, but what about

the portions of the order that cover the, let's say, the court's administrative staff. There would be no reason

to campaign on any of that. That was drawn, sorry, there was no evidence presented on that issue at all. He's never made a statement about court staff here. So that was drawn from the New York situation that we briefed. That was core political speech. That illustrates the hazards here. There was no evidence on that particular case before the district judge. Apparently, it was relying on, you know, sua sponte reviewing of media reports. When in fact, the statements about the principal law clerk in the pending New York civil trial were absolutely core political speech. So it definitely violated the First Amendment. Yeah.

I'm talking about in this case, though, where there's an effort prophylactically to protect court staff. And my premise is, or my question for you, is when you say there's complete overlap, it seems that that's an easy case where there actually isn't overlap, that individuals who are working for the judge assigned to this case would be no topic, no topic in a campaign other than an effort to undermine this case qua case.

I mean, I think I would say a couple of things that we're talking hypothetical. The president has never made a statement relating to this case about any court staffer that I'm aware of. But the order, as you well know, and as you've challenged, the order applies to courts with no evidence to support it. I appreciate that aspect of it. I appreciate that aspect of it, that you've made a point about whether there's evidence or not. But I'm talking about the claimed overlap.

between political speech and the speech that's restricted by the order. And I'm positing that there actually is speech restricted by the order that would not be campaign speech but for this case. And surely you can see that. I think that your decision shows exactly the opposite. We're not talking about those circumstances. If there were a staffer of the judge about whom it became clear that there was some political bias,

Nobody disputes that the defendant's team could and would file a motion with the judge to raise a concern about that and comment on how the judge ruled on that. But that's not where we are. We're in a situation of prophylactics, and that's really what I'm asking you about. Of prophylactic situations where nobody who works for the court

These are career people. Nobody volunteered for this assignment. None of them have life tenure. They're just trying to do their jobs. Nothing about them would be campaign speech in the absence of a case. But what we see in New York is that if you enter that profile... This is not New York. We're not in New York. What?

If you enter that prophylaxis now, based on zero evidence, no evidence at all, no evidence of the political bias might be as of the court staffers, and no evidence of any statement about any court staffers, and if it later turns out that there's an extremely biased court staffer, we have a huge First Amendment problem. We have a fiery strait based on no evidence which is what this is. Let me ask you then, in a different way, let's say that kind of situation arose here.

And the order remains in place and is valid. So the defendant is in jeopardy of violating the order by tweeting about it. Nothing will prevent the legal team in that situation from filing an emergency motion with the court, coming up to the emergency panel of this court and saying, there's bias here. And presumably, once that's filed in the court, nothing would prevent the defendant from

complaining about the way it's ruled on. That flips the first amendment on its head. The burden is on them to justify... I'm just saying there is a protection there. There would be potentially the additional running on emergency motions. Keep in mind what its black letter law at the Supreme Court said in Elrod against Burns, which is that...

The denial of First Amendment freedoms, even for minimal periods of time, is black letter irreparable injury. So even injecting that delay, that procedural delay-- keep in mind, we're talking about a prior restraint that is-- I think everyone can just base on no evidence at all. And in fact, if it were to become relevant, there could be compelling First Amendment interest in calling public attention to the alleged bias of the court staffer, which is what we see in New York, a gag order that is now state. There's no precedent that I'm aware of that requires evidence

of tampering with witnesses before a prophylactic order can be put in place to protect tampering with witnesses. Am I wrong about that? I think the case law says you have to have an imminently appending threat to the administration of justice. About witnesses? Communicating with witnesses? That's the general standard for all those. You mean for the defendant to directly communicate with a witness. That again, I think... Or saying publicly threatening things about witnesses.

I think, what do you mean by threatening? Because the First Amendment has a clear test of... Something that falls short of true threat because we wouldn't be here if that's the only thing that we're protecting against. In the context of a political campaign, what is described as a threat here is core political speech. I can't emphasize that enough. So the hypothetical is saying, well, what if he makes a threatening statement? What they've described as threats is actually, under the Supreme Court's jurisprudence, core political speech.

It is rough and tumble, but it is hard hitting in many situations, but it absolutely is core political speech. And all the examples they provided, it's directed at public figures from the highest echelons of government. Former vice president, former attorney general, former chairman of the Joint Chiefs of Staff who used to command the entire United States military. And the argument is that it's going to influence their testimony. That's a, it's just not a compelling. The release condition says defendants shall not communicate.

with witnesses, you keep talking about directly communicate. So is it your position that if he communicates through a social media post, "Hey witness X, I know the prosecutor's bothering you, trying to get you to say bad things about me. Be a patriot. Don't act treasonously. Don't cooperate." We have no-- I am not. It is really, it is really, I'm sorry, but I really want an answer

to your understanding of the release conditions. This is, for the record, a hypothetical question. It, to my knowledge, hasn't happened. Apparently, to your knowledge, it hasn't happened. Not even saying it would happen. I want to understand how you-- because you have said, no First Amendment problem with the release condition. OK? So I've asked you that question. Does that communication violate the release condition?

social media post that is a direct communication to a witness could well violate it. We would have to know more about the context. No, I've given you exactly the content of the communication. I don't know what more you want. I've given you the text. And so that's what comes into court. Is that a violation? That very well might be. So when you say indirect communicate, because you keep saying direct

communications as opposed to, I assume, indirect. What indirect communications with witnesses are allowed? If there's a hypothetical, for example, that was raised earlier where he's at a town hall speaking to the entire American public, televised, and says something that's core political speech. If he says the exact same thing, hey, I know a witness X is out there, and this is exactly what I said.

What I would do is put that in the framework of the comments about Vice President Pence. No, no, no, no. Don't put it in any other framework. Just tell me, does that violate the release conditions? Before I answer that question, I would like to make the point that the context may result in a different answer to that question. As you've described it, that could well be a violation of the release conditions, but the context is absolutely critical. In many of these cases, look at the

posts about Vice President Pence. They say, oh, look, he's commenting on Vice President Pence's testimony. What actually happened there is on August 1st, the indictment is released with a statement about two honest... That's not my hypothetical. My hypothetical was quite clearly about cooperating with the prosecutor or not. I think the real world

Course of communication relating to Vice President Pence illustrates my response that we must know the context. What more context do you want from my hypothetical? Well, for example, look at Vice President Pence. No, no, no. Tell me what fact you need to know from my hypothetical. What if that is a witness X? I know you're listening and then talks about prosecutors been bothering you. Anyone who's faithful, loyal, kind.

Won't work with this prosecutor who's out to get me. Doing so, lying, that would be almost like treason. What if Witness X has just... Wait, so what more facts do you need? Well, what if that is a fair response to something that Witness X has said in the political arena? I'm not asking whether it's fair or not. I don't see anything in the release condition that says only unfair communications are prohibited. Is that a communication?

To a witness. And I think I've already stated that it could well be. Could well be? It is a risk. Well, again, it could be. There's another fact you need to know to tell me that it is a communication with a witness. What would that fact be? Well, for example, if it is a statement being made in the political arena that is not directed to the public as a whole. It's a political arena. I've just said it's a political arena. It's either a social media post or he's standing in the town hall. So it's in a political arena.

And I think my answer is, I just don't know how to answer differently. It could well violate it. It seems like the way you've described it, that that would be a violation. But with the caveat that there could be additional facts that would lead to a different conclusion. So just because I've been struggling to try to understand what your test captures, right? And so it's in addition to criminal law violations, it captures...

is messaging to at least known prospective witnesses about cooperation. It could well do so. Again, it would depend on the case. And so the First Amendment would allow you to have arguments on both sides. But the First Amendment, if the district court concluded factually that that were a communication with a witness without counsel present,

Then that First Amendment would allow punishment of that. If there was evidence supporting that finding and the finding was made that there was a violation of the conditions of release. The evidence is going to be the tweet or the recording of the town hall meeting. We've never disputed that. We've never disputed that. Now, what I resist doing is trying to try this case based on hypotheticals when the standard is let's look at the evidence. Because the evidence we have... Well, let's try in a case based on hypotheticals. We are testing...

the legal rule that you wish us to adopt because again, as the Supreme Court has, I know you have embraced the Nebraska test and made very good arguments about that and about the importance of political speech here. You've made very, very important points about that, but the Supreme Court has said

That's not a technical metric to be applied, clear and present danger. It bespeaks a balancing test. And so what I've been struggling with this argument is to understand what in your test balances the legitimate constitutionally important values of protecting the criminal trial process. And so it sounds like, at least if he's talking about prospective witnesses,

there may be some room there between what would be illegal

and what could constitutionally be proscribed through an order of the court. I think I agree with that, as you framed it. And I would say two further things. One is I direct the court's attention to the Heckler's veto case. Heckler's veto rationales have uniformly been treated as basically categorically invalid. So whatever room there is there when dealing with the Heckler's veto rationale is vanishingly small. I know, but there's, you know,

There's also another rule in the law that people can be assumed to intend the known improbable consequences of their actions. That's a pretty settled rule of law as well. And a district court trying to protect the integrity and fair administration of a criminal process

Could they consider that well-established rule? Not under Heckler's veto theory. They're not doing it under a theory. What I'm saying is, could they, if hypothetically this hasn't happened, this is a hypothetical, a statement were made by another criminal defendant who's running for some low-level office and made a statement that caused

ended up causing harm to that-- inspired some third person to engage in harm. And it was shown-- a hard showing to make-- that the speaker was aware that there were known and probable consequences

of this violent action and suing from, you're already shaking your head no. My answer is going to be no. I think that would be decades of Supreme Court's heckler's veto. Because the notion that, oh, you knew this was going to happen could be made in every single heckler's veto case. Oh, you knew when you gave a speech about, you knew when you marched through Illinois dressed in your crazy outfits. Those cases didn't involve balancing.

against another constitutional interest in preserving the integrity of the criminal justice process. And so that's where my question is coming from. Yeah, in most cases, but they didn't involve the balance. You agree we have to balance, right? The Supreme Court has said this is a-- even your clear and present danger test is a balancing test. Do you agree with that? I don't view strict scrutiny as a balancing test. We've argued that it's either per se-- The Supreme Court has said--

in straight up terms that clear and present danger is in fact not a technical rubric, but in fact is simply a balancing test. That's what the Supreme Court has said. So we're bound by it whether you agree or not. But I assume you agree there's a balance here that doesn't exist in the normal First Amendment context.

I don't dispute that there is a balancing to be done, but to me the term balance suggests a kind of looseness in the legal standards that apply, and we disagree with that categorically. There's the strictest of states. Strictly scrutiny is a balancing test. I don't describe it as such, and maybe that's why there's miscommunication. Right, we are balancing competing interests. The Supreme Court has told us, whether you agree or not, but so I'm hoping you will agree, because the Supreme Court precedent is quite clear, that whether you formulate it as clear or present danger or otherwise...

the First Amendment area, we're in a balancing test here. And so we are balancing, and particularly in these cases involving criminal process and free speech. They've said time and again, it's a balancing test. Now that doesn't mean it's 50-50, right? Your position, of course, is that this isn't a 50-50 balancing. There's already a lot of weight on the First Amendment side.

Right? So understood. I don't dispute the court's use of the phrase balancing at all, but with the caveat that we have argued that under the heckler's veto standard, it is per se invalid. All the cases they've relied on are not heckler's veto cases. And that is really what the Supreme Court says, because if you engage in any scrutiny at all in a heckler's veto context, you would end up being able to shut down every speaker who ever speaks. And that's... You had a different...

If we had different-- first of all, I'm not shutting down everyone who speaks. This is only affecting-- no one's shutting down and everyone's-- this is only affecting speech temporarily during a criminal trial process by someone who has been indicted as a felon. So that's a different category first. So no one here is threatening the First Amendment broadly. But secondly, if we had, hypothetically, a completely different criminal defendant

who is running for, say, what's a statewide office? Pretty important. Statewide office. And this person, hypothetical facts not before us, engages in political speech decrying the process, the criminal process, insulting, berating, and calling terrible names of the prosecutor and the prosecutor's family.

and starts posting the address where they live. And every time this campaigner does that, someone in his audience goes and tries to execute violence against the prosecutor or family members. That is not this case. But if that happened, if there were a repeated pattern of it happening,

How would that fit into your balance? I think the first half of your hypothetical is exactly like the case against Congressman Ford, where he was allowed to say the prosecution against me is racist, I'm being persecuted by the Reagan administration. The first half, but of course the second half was really important. And that is that there's a repeated pattern. And so I'm not asking for a case citation here. You've done an excellent job in your briefing to give us really important, relevant cases. What I'm asking for is...

In that hypothetical, if there's a repeated pattern in the balancing test, one, could the district court factor that repeated pattern of conduct by third parties responding to speech?

Not if that parent was three years old and the evidence... That's not my question. Nope, nope, nope, nope. I mean, again, I... If it's right, if it's immediate. In other words, if you have a criminal defendant who's posting street addresses, home addresses of, you know, whoever it is, witnesses and trial participants, and there's a repeated pattern of acts of violence against them...

I'd have to know more, I'm qualifying what I say with saying I'd have to know more about the facts of that case, but I could certainly see a situation where that would be justified. I'm not saying that it can never ever be justified with the exception that the heckler's veto rationale is-- - Well that is a heckler's veto, it's how third parties respond to the speech. It is definitely, I think, what you are calling a heckler's veto, but it is also, I'm combining that with either intent or at least knowledge or recklessness on the part of the political speaker

as to the entirely foreseeable and repeated pattern of consequences from that speech. I think my response to that is that the so-called state of mind of the speaker is irrelevant in the Heckler's veto context. And we have no evidence of an improper state of mind here. We have an argument from a district judge. And I do keep returning to the facts of this case because the facts here don't come anywhere close to justifying this gag order.

I don't know. I know I've gone way over my time. No, that's OK. I think as long as we have questions, if you don't mind, if you're OK. I want to make sure we hear from you on the vagueness argument. So it's a little bit separate from what we've been talking about so far. But I think the question to you, just to step back, the district court is concerned about witness intimidation. It also worked hard to give some leeway to the First Amendment values. And so the order it entered is narrower than what the government wanted. There's a significant carve-out.

and it certainly gives rise to close edge cases. But I think the question to you is, with the two orders, with all the examples in the transcript, what is something that you're genuinely unsure

whether Mr. Trump can say under this order? What's your sort of best concrete example of that? Half of the social media posts on the record. I mean, you go through them, you're like, is this general or is it targeting? I mean, from the perspective of a lawyer who has to counsel clients, you're in a, you're steering, because it's so vague, you're steering straight towards the shoals of chilling more speech than is intended. So I appreciate that general point. The district court took a

a lot of care in an extensive hearing to go through a lot of examples and references those in the order denying the stay. So what I would love to hear is if there's one particular example

of those posts that you don't think has been resolved? For example, there's one social media post in the record that doesn't mention the special counsel by name, but refers to the Department of Injustice being run by Crooked Joe Biden, who are, you know, railroading me. I don't remember the exact words of it, but railroading me for political reasons. Is that targeting the special counsel or is that a general statement? It seems to me that's exactly what the district court was saying was allowed. Right.

statements about the Department of Justice and President Biden. That's sort of the literal words of the carve out. So I would think maybe that's a question for the government, but I'm pretty sure that's common ground that that's allowed. I think that the I would refer to court the actual social media posts. I read that. I'm like, what would I tell a client?

Can you do this or can't you do this? That's the chilling effect. And I would emphasize to the court the standard in genteel. Genteel, the governing opinion on the vagueness issue is Section 3 of Justice Kennedy's opinion. That's the opinion of the court. What does it hold? It holds that the State Bar of Nevada had a rule that says you can make a general denial of your client's guilt, but you cannot elaborate it.

And Justice Kennedy says this is unconstitutionally vague. Its contours are unclear. And a lawyer cannot know when you go from the safe harbor of the general to the forbidden sea of the elaborated. And here we have general intolerance exactly on point. I appreciate that argument. I think one big distinction is that in genteel, it was a generally applicable rule.

Here we have an order that's informed by the transcript and all of the examples that were given. And it does seem like the core of what's allowed and what's not is fairly clear. So just for example, I think this is page 201 of the appendix, your co-counsel says that Mr. Trump should be able to say a joint chief of staff should not engage in that kind of conduct, referring to Milley. And the court says yes.

He's allowed to make that type of statement. What he can't do is go on and say that type of conduct should be punishable by death. And so it's not sort of a completely abstract distinction, is it? It's whether there's a suggestion of a threat. I think what you said powerfully illustrates the vagueness. Because if their position is there's two statements about General Milley, one is okay and the other is not okay.

I don't know how, as an attorney who has to counsel a client to comply with the law, how you would say, oh, that first one is not targeting him. It's critical of him. The generic definition of target that we cited, that would be targeting. And the argument is, well, we're not going to count that one because the First Amendment interests are obviously clear. See, what my concern is, though, it's not about the abstract meaning. We're not asking whether an ordinary person in the public can understand what targeting means. We're asking whether the parties who are all represented at this hearing can understand

And so we have that statement, right? And then the government makes similar examples on page 40 of their brief that allowed, not allowed. And I'm just trying to ask, which ones--

I would cite to the court to address this, the graded standard. The graded standard is you can have a situation where there'd be ad hoc or subjective application of the standard. So we have an order that says don't target, right? Don't target prosecutors, witnesses, court staff. And then the prosecution comes in and says, actually, it'd be okay to make a public statement criticizing someone who's a potential witness they contend. And that wouldn't be targeting. At that point, from the defense perspective, it's like,

What does target mean? We have an answer to that. I appreciate that concern about targeting. So is it clearer or less clear if the order were to say that what's prohibited is comment on any reasonably foreseeable witness because of the witness's potential participation in the trial? And let me just give you a little bit of context of my thinking on that, which is,

There are a lot of people who are out in the public and with whom the defendant has a history and he has reason apart from the trial that he might want to comment on them. There is also a whole category of witnesses with whom there is no, you know, who are not public figures and where the

the reason that he might be tempted to comment on them in the campaign is because they're potential witnesses. And that's really at the core of the interest in an impartial trial. So does that add clarity to say that you can only make comments on potential witnesses but not because of

their potential role as witnesses. I think sort of a standard, I think because of would sort of wrap into that standard subjective motivation of the speaker and I think that would be, you know, an equally bad, it's a different vagueness problem but it's equally bad. Using the word comment instead of target, that might be clearer. I'd have to look that up in the dictionary to have a clearer answer, which is what we did here for target. What's doing the work of targeting is the because of, which I think is narrower than targeting.

because it's both targeting and then linking it to the interest, which is the trial and protecting the trial. And it also, I think, organically distinguishes between the public figures who would, there would be more reasons that they would be fair game and the non-public figures who also at the same time might be more vulnerable. If there were an order that used because of, then...

I think that would be naturally interpreted to turn the violation on the subjective motivation and making the post. I think that would be all kinds of grainhead problems. I'm not so sure, although I think if I were in your position, I would embrace an intent standard. But I don't see this as an intent standard. I see this as a, you know...

as more of a nexus and it would have to be assessed. Again, I think that would trade one vagueness problem for another. And be worse or less unclear? I don't know. I think they both seem fatal, so I think it's equally bad. Equally bad, okay. The day after the indictment, defendants went out on social media, quote, if you go after me, I'm coming after you.

Can you say that's protected speech? Absolutely. If he had said that right outside the courthouse to a phalanx of cameras, so he's speaking to the public, same answer? I think so. If he posts it with a picture of the district court judge in the corner? Again, we'd be getting into, you know, I'd have to know the context of that. I've given you the context. It's the same identical social media post, but adds a picture of the district court judge in the corner.

I'd have to look at case law. That would be more problematic for sure. Why? Well, I think because then in the context of the state, at least the context that you've added in a hypothetical that, again, is not present in the courthouse here, there would be a situation where an argument can be made that that's some kind of threat to the district judge, which if it were at the lowest level of true threats, and I haven't read the case law, I cannot make a legal determination as I stand at the podium, but if it rose to that level, that would definitely not be protected by the First Amendment. It is similar threat in one of the cases that I've cited in the matter for decision. So the same words...

There are words that can be said that adding a picture will take them outside the First Amendment. And again, I don't think that would, but I'm saying it's getting closer. For example, in the Manafort decision, there was a posting of a picture of the district judge with crosshairs, I think, next to the district judge's head. There, you're outside the First Amendment almost certainly. You don't have to wait. Almost certainly? Right.

I haven't read the true threats case law, but I bet that statements like that would qualify as true threats. So this really gets back to the one thing that I'm finding really elusive in your presentation.

I understand that you think the ordinary First Amendment, prior restraint, strict scrutiny standard applies. But even taking that as the correct position in contradistinction to genteel, which you would reject, I don't hear you giving any weight at all.

to the interest in a fair trial. And am I right that you don't? That simply because the defendant is a presidential candidate and he wants to speak on anything he wants to speak and he basically indiscriminately wants to post on social media,

that there can be no restraint of his speech because any restraint, no matter how tight a nexus to protecting a fair trial, is overcome.

by his campaign interests. I emphasize two things in response to that question. One is that the speech at issue and the criminal trial are deeply intertwined. And the other is the statement in the Brown decision that talks about absolute freedom, at least while the campaign is pending. So your answer is there is no work that the interest in a fair trial can permissibly do

at the very least-- In this situation that could meet the speech standard that you would apply. I wouldn't put it that way. I would say the showing would have to be extraordinarily compelling at the very least. And again, I would quote the language at Landmark and Pennington that talks about-- And as I hear your answer-- sorry to interrupt, but we've been going quite a while. As I hear your answer--

the compelling showing would have to show the harm had already occurred and that it was likely to repeat. You're not able to accept the notion that there could be a prophylactic showing based on some amount of prediction. I disagree with that because I think the standard that we've cited in landmarks says imminently impending based on solidity of evidence. So that does say there could be a

is a restriction that's entered before there is a-- but there would have to be this compelling evidence to show. I think the Supreme Court in Nebraska applied an imminently impending test when it analyzed the district court's concerns about-- that was pretrial publicity. I sure don't read it as doing that. I believe Nebraska evidence-- one thing that it emphasized, for example, is the need for evidence in the record to support the restrictions. It was absent in that case. No, no, no, no, no. It's absent here as well. I don't see assessing the probable

publicity. Right? And he was justified in including that there would be publicity based in part on common human experience that publicity might impair the defendant's right to a fair trial. I'm reading from 562 and 563 of the opinion here. A clear and present danger that pretrial publicity could

impinge on the right to a fair trial. Of course, his conclusion as to impact of such a publicity on prospective jurors was of necessity speculative, dealing as he was with factors unknown and unknowable. That does not sound at all to me like the-- I mean, you've wrapped yourself around Nebraska versus Stewart. So I just want to make sure that that language from the Supreme Court, which of course is controlling on us, what you're talking about

as the predicate for the district court's showing of a need to impose some sort of restriction. Yeah, I believe that decision goes on to say-- Oh, no, it validates the terms of that specific restriction, but this is problem one. Do we need to do something? The court breaks it up into separate little things, right? Then it goes on to say there were other aspects of that very, very broad order that were a problem. But the need to do something and the district court's entitlement to do something that is going to affect speech

Can be based on the Nebraska showing. That's your position because you've embraced that case, correct? I don't believe that that opinion means that you can just speculate that you need a showing on part one. I've told you what it says. You can read the whole paragraph. I'm sure you've read it many times because you rely on this case extensively. Do you agree or are you asking us to disagree with what the Supreme Court said was a sufficient predicate for some action?

not the order in that case, but for some prophylactic action by the district court to protect the criminal process. I believe the court should follow Nebraska. Including that part? I disagree with the way that interpret, that bear's been interpreted. Mr. Sauer, can I ask you if the district court entered an order restricting a criminal defendant from making comments about individual jurors and the defendant were a candidate for public office, would

Would that order violate the First Amendment? It would depend on the context, but I do concede there'd be facts that could justify an order like that. It would depend on the context? I think so, yes. There's a situation in which, let's say the district judge prophylactically has a very powerful and vocal defendant in the case, and

jurors are, you know, it's their civic duty to participate. And as a more open measure than having a sequestered jury, the district judge wants to protect the jurors and says no public comments about any of the individual

Juries you think it would depend on the context whether that order was consistent with the First Amendment? I'd say two things we don't dispute that there could be an impaneling of an anonymous jury here Which is I think is the hypothetical protection of the juror I think yeah, I think it is saying hey the jurors are anonymous don't post anything. No, I'm saying a non anonymous I'm sorry a non anonymous jury

And the question is whether the district judge consistent with the First Amendment can say off limits

to comment specifically about the jurors. That's almost identical to the facts of Capital City's media where Justice Brennan, I think, stayed a rule that said you can't talk about the jurors because what was being said about the jurors was already in the public domain. He said, I can imagine a justification that would justify that. So that's why I say it may depend on the context. Really? Is the information in the public domain already? With the internet nowadays, the address...

So every juror might well be in public domain. So district court issues the order. I should call it. The district court issues the order that Judge Pillard referenced. And a criminal defendant then tweets out to the world, here's the name and addresses of the jurors deciding my case.

If it got in the public domain some other way... It's already in the public domain, yes. What happened in Capital Cities Media is this was put in the public domain by the court. There was an open hearing. No, no, no, that's not my hypothetical. My hypothetical is this is... The world has changed since that time period now. And the amount of information about any individual, including their address...

It's pretty easy to find. If the defendant said, well, I can't tell the name of the jurors because I've been told not to. But here's the addresses of the unnamed jurors.

Which is very easy. That's already out there, right? You can just find that with Google. You can't. I think, let me go this way. I don't dispute it. The First Amendment would allow a gag order from promoting individual address information of jurors with the caveat that...

Again, capital cities media would probably govern in that situation. If it was a situation where that would have already been publicized by the court, Justice Brennan said there's no possible justification for that. I mean, what about now? I mean, in a situation where there isn't any publication of these individuals' relationship to this case.

Right. That, I think, would be a huge problem, right? That would not... And as I understand the hypotheticals that no one knows who the jurors are or no one can link those names, John Smith and Susie Jones, to those addresses, but the defendant says, here's the addresses that go to the jurors, that's very different from capital cities media. I don't dispute that that would be... What even if they were public...

if they were public because they weren't sequestered, they're not yet public, nobody's published that, nobody's put it out, but they just are as Judge Millett was saying. If you have a little bit of information about a person you can find out a lot, but can the judge say fine these people can live in public but they can't be posted for millions of people by someone who

It's not a heckler's veto, really. It's a cheerleading squad that is going to come out and amplify or act on

and perhaps overreact. I think that case would have to be assessed under capital cities. We contend that protecting the anonymous jurors in this case is an alternative measure that should have been considered and wasn't. It's something that we've been essentially advocating for in our briefing in this case. So it's a situation where first amendment or not, I don't foresee any challenge to it because we would view that as a less restrictive alternative than dragging the president's court. I'm not trying to manage this case, which the district judge...

we all know this very able to too. I'm asking about the, again, you know, the hypothetical is to probe the nature of your position and it is revealing.

of the fortitude that you accord to the First Amendment and the really lack of any role for orders protecting the judicial process. And that's what I'm hearing. And so it was instructive to me to hear your answer to that. In any event, for all the reasons we say in our briefs, we ask the court to reverse the case. Can I ask you one more? Sure. Yes, you're on. I'm sorry. We'll let you rest. I apologize that it's been long. But it's been a helpful discussion. Thank you.

It's the night, and to be clear, you know from me about who the prospective witnesses in this case are, but let's assume former Vice President Mike Pence is going to testify. And it's the night before his testimony. Could the defendant tweet out, Mike Pence can still fix this. Mike Pence can still do the right thing if he says the right stuff tomorrow.

That was more problematic than the statements we have in the record. However, you should weigh the fact that is there any reasonable prospect of influencing former Vice President Pence's testimony? Nobody contends that any statement by the defendant might influence him. You're right. I was not specific enough. First, does that count as a communication to a witness?

Again, I would give the answers. I know we had a discussion of this before. I'd give the answers. I've told you it's tweeted. Depending on context. It's tweeted out. I've told you that is the full text of the tweet and it's tweeted out on his social media platform. And is it responding to something that Vice President Prince said or is it set in a vacuum? It is the night. This is the sum total of facts. You're not going to find any more. You're not going to get any more context. This is it.

the night before he's scheduled to testify. I'll give you one more fact. It's public record that he is testifying the next day. And that message goes out. Is that, first of all, is that communicating with the witness? Violation of the release conditions. If it's just broadcasting a statement of court political speech on social media, likely not. Okay. Is that something that the district court...

could prohibit consistent your First Amendment test. - Only if it was based on compelling evidentiary showing of actual threat to the administration of justice. - No more showing, she's the district court. - Only after it's happened. - No, no, you're right. So you're saying that if Mike Pence then calls in sick the next day, sorry, laryngitis can't testify, then we can say you can't post about Mike Pence, that can't be the test. So you're saying there's no prophylactic rule

You're saying that doesn't violate communication with witnesses, and you're saying there's no prophylactic rule, there's no circle around that communication with witnesses, that the district court could draw, like, prohibit that statement. I'm saying that that prophylactics would have to be based on a compelling evidentiary showing of likelihood to influence the testimony. The district court says, I conclude that that communication was one

attempted communication with the witness, and in fact likely a completed communication with the witness, and two, was designed to and could affect a reasonable person's testimony before the court. So now you've got those two fact findings.

Those fact findings would have to be based on evidence. If those fact findings were made-- You're just not going to let the district court say you can't in advance, the night before trial, encourage somebody's-- the content of their testimony. Your test doesn't even allow for that. If there's no reasonable prospect-- Your test doesn't allow for that. If there is no reasonable prospect and no evidence that would actually influence anybody's testimony-- But there's not going to be. And again, it is not my test-- So there's no prophylaxis. Because when you say I want evidence,

was actually going to influence. What you want is it has to be criminal. Otherwise, the district court can't protect it. Because if there's actual influence, that's a crime. Or actual evidence, that's a crime. So just to be clear, we're back, I think, where we started is that... I think I would stand on my prior responses. Okay. Any other questions? Thank you for your generous time. Thank you, Your Honor. We'll hear from the governor. We will give you some rebuttal time. Thank you.

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Thank you, Your Honor. May I please the Court, Cecil Van Deventer on behalf of the United States. The District Court correctly found that the defendant's well-established practice of using his public platform to target profeemed adversaries, including trial participants in this case, poses a significant and immediate risk to the fairness and integrity of these proceedings. The order that the District Court crafted to address those risks should be affirmed for three principal reasons.

First, the unique factual record before the district court. Second, the unusual narrowness of the resulting order. And third, the recent evidence demonstrating that the defendant is fully capable of understanding and complying with the order while it's in effect. I just want to follow up. You just said significant and immediate risk. So you're not embracing...

The Gentile test? No, Your Honor. To be clear, the Gentile test is the constitutional test that applies. Significant and immediate risk is the language that the district court found, so it sort of assumed that the... Those are kind of different words. Pardon? Within the law, those are substantial likelihood of material prejudice and significant and immediate risk.

I think are two different legal tests. I completely agree, Your Honor. And the Gentile test of substantial likelihood of material prejudice is the correct legal test. But because the district court incorporated the higher test of the defendant proffered, that is the significant and immediate risk test, I think that does inform the scope of the order and informs the findings of the district court made. But to be clear, the Gentile test is the one that applies. Mr. Van Deventer, where are you--

Where is the finding that you're relying on? It's on page two of the order, Your Honor. Yes, this is at Joint Independence page number 230.

the court finds that such statements pose a significant and immediate risk, that witnesses will be intimidated or otherwise unduly influenced by the prospect of being themselves targeted, harassed for threats, and two, attorneys, public servants, and other court staff will themselves become targets for threats and harassment. On the second part, number two, applying to staffs of the special counsel and of the court,

The nexus between the concern that they be targets for threats and harassment and the administration of justice is not entirely apparent from the district court's order. Can you help explain that? I mean, for example, the district judge is not, no speech relating to the district judge is gagged. That's correct. And that's in part because we trust that the district judge will not be swayed by anything that the defendant says.

How then could the district judge's staff affect the administration of justice? The district judge's staff? Yeah, any effect on them of non-criminal harassment threats? Well, I think exposing trial participants, whether those are courtroom staff, line prosecutors, or others, to the risk of threats, harassment, intimidation, poses a systemic risk to the fairness and integrity of the proceedings. How so?

It creates a world in which people who are public servants will have to decide, do I want to handle this type of case? Do I want to press on with the sort of prosecution that we think the facts and the law demand? Or in doing so, will I run the risk that I will be threatened, my family will be threatened, that...

you know, there's a chilling effect and a call passed over the whole proceedings if the trial participants feel like they are at risk just as a result of their participation in the case. Separately... And that's... the way you worded that, it made it sound like before they became part of the team, like in the future other other staffs might hesitate before joining the team. Is your submission also that existing staff might quit?

Well, I think there's certainly a risk of that and certainly the court doesn't have to ask each staff member how likely are you to quit if your family receives a death threat? I don't think there's any basis to say that in the absence of the likelihood that you will actually be deterred from doing your job, you have to tolerate threats and harassment being directed towards trial participants. I had just a very specific question. You mentioned the families.

And the district court from the bench said that the gag order applied to the families of the staff of the court and the prosecution and the defense counsel, but the written order doesn't reference that provision. But what is the government's position as to whether the

order currently applies to family members? Our position is that it does, Your Honor, for two reasons. First, the beginning of the order, of course, incorporates the oral explanation. And as the court said orally, the prohibition on targeting family members, in her words, goes without saying. And so I think in the district court's view, because the prohibition extends to

these specific categories of trial participants, it necessarily extends to their family members as well. So as I take it, your position is less a substantive one, that it would affect their impartiality

but is more a question of whether the people would even be willing and able to do the work. It's partially that they, it would threaten whether they're willing and able to do the work. It could also threaten the way that they are perceived by the jury. I know that my friend on the other side has suggested that the district court disavowed any sort of jury taint as a rationale for this order, but I disagree with that.

What the district court did disavow was the request by the government to include within the scope of the order post-targeting the jury pool in the District of Columbia. Said that can be dealt with through voir dire. I'm not going to

prohibit those statements. But I think the district court very much incorporated the idea of trying the case in the media, polluting the jury pool, prejudicing the jury. If the case is presented to the jury by people about whom there's been a months-long process of drumbeat about their corruption, inflammatory comments about them in the public, that could affect how the jury perceives them. Council, I think... Are there findings about that in the record?

Well, the court clearly was focused very much not only on threats to trial participants, but the way that this would affect the due administration of justice, the fairness of the trial. And so that, I think, incorporates concerns about how the trial will be presented to the jury. Absolutely. So the two mechanisms you've identified, one is that individuals would be de-energized and or deterred from even being on the team.

Right? And the other is they might be, their impartiality might be tainted in the eyes of the jury? That's right. It's basically a kind of specific example of trying the case in the media. By the day that the jurors walk into court, they have heard derogatory comments, inflammatory comments about the people that will be presenting the case. That certainly threatened the fairness and integrity of the proceedings. Isn't that exactly what the law dear is going to sort out?

voir dire is moderately well situated to address those sorts of concerns, yes, but as Gentile pointed out, the availability of voir dire to sort out these types of prejudicial problems is not kind of dispositive. The court should, in fact, take preventative measures, prophylaxis measures to prevent that sort of prejudice in the first place. I was just going to say, I heard you to be suggesting that it's not just that folks might be

deter from participating in the case, but that the fact that they and their family are receiving threats might distract, might interfere with their ability to carry out their roles as part of the system of justice. Is that so part of what you're saying? Absolutely. And if I can make just one factual point, because I know my friend on the other side has emphasized a couple of times the supposed lack of any submission of threats being directed towards the special counsel's office, but I point the court to...

Page 85 of the joint appendix where it specifically says, "Special counsel has been subject to multiple threats and the specific special counsel's office prosecutor that the defendant has targeted through recent inflammatory public posts has been subject to intimidating communication." So it's not accurate to say that there have been simply no threats or that none were in the record presented to the district court. I'm sorry.

I just was going to ask you to elaborate. I think one of your first, your three principal reasons was the evidentiary record. And I appreciate the point you just made, but in discussing what is unique about this evidentiary record, can you please respond to the argument that at least most of what's being relied on here is from 2020 and the fact that in opposing counsel's view, there's been a lot of intense media attention and relatively fewer threats.

I just would like to hear what the strongest points you think are in response to that argument. Yes, Your Honor. So I think it's important to look at two aspects of the record that was before the district court. The first is the fact that, to my knowledge, there has never been a criminal case, and the defendant certainly has not identified one, in which the defendant has routinely, I believe his word was incessantly, taken to public proceedings.

posting to a national audience to routinely vilify the prosecutors as thugs, as deranged, as lunatics, to malign the court as fraud and hack, and to attack witnesses based on their credibility and the substance of their anticipated testimony, calling them liars, cowards,

uh... week saying one deserves the punishment of death that alone i think would be sufficient for the for the district to act but you combine that with a a record going back a number of years but continuing to this day which numerous people have been targeted as a result of uh... the defense post and i think there are sixteen different people that are documented in the record

Eight of them are from the 2020-2021 period, which I believe, Judge Garcia, as you noted, is hardly some tangential time period to this case. This is exactly the core of what this case is all about, this period after the election. Some of those, of course, go through...

Today we talk about, of course, the threat to Judge Chuckin, and then we have threats to the district attorney in New York, threats to the district attorney and the sheriff of Fulton County, threats to the former president, threats to the judge chambers presiding over the ongoing civil trial. These are all from the last few weeks. So the notion that there was some dynamic that existed in 2020 that has since abated or gone stale, I think, is wrong. How do we...

How do we know what he gets held accountable for? I mean, this is the internet era. He's a high profile public figure who posts. It's lots and lots and lots of followers.

but it's also covered on news channels that have listeners and newspapers that have readers and all manner of media can communicate his words to people of the public. How, I mean, how do we, how does the district court reasonably decide which postings he is responsible for prompting adverse conduct?

resulting adverse conduct, and which are, he's protesting, he's expressing his views as the First Amendment allows, and in a social media world cannot be held responsible for what everyone anywhere in the United States does when they hear about it.

Two answers to that, Your Honor. I think first is the sheer number of occurrences. So certainly if there had been one time when he posted something derogatory about a person and then at some point thereafter that person was a recipient of a threat, I don't think we would be here. The sheer number combined with the testimony of the people who experienced it on the receiving end who said what changed when the defendant tweeted about me was I started getting much more graphic, much more specific, much more pervasive threats.

When, as one of the witnesses, a poll worker in Georgia testified to Congress. Do you have any of that with respect to his statements about this criminal trial? No. None of the people who have been directly threatened as a result of this criminal trial have testified about that exact phenomenon. Although, again, I think the context around the threat to the district court is worth emphasizing. So the indictment came down on August 1st.

The arraignment was on August 3rd. Before traveling to the arraignment, he issued a public statement saying, unfair venue, unfair judge. The next day, he posted, if you go after me, I'm coming after you. And the day after that, the district court received the death threat. So yes, it's a matter of inference, circumstantial evidence, of course, but the district court made those findings. And to Judge Pillard's point earlier, those are findings of historical fact that should be reviewed for clear error.

And because I know you referred us to the district on page 85. Special counsel has been subject to multiple threats. That's one thing. But the special counsel's office has been targeted through inflammatory public posts. I guess intimidating communications and then inflammatory public posts. But doesn't the First Amendment protect

And this is, to be clear, these comments have come in the course of a presidential campaign, or I guess at this point a party nomination campaign. Inflammatory language? So, Your Honor, our position... Surely there has, you know, I asked them about balance for the protecting the criminal process, but I guess I'm asking your position, which doesn't seem to give much balance at all to the First Amendment's

vigorous protection of political speech and the notion that high-profile public figures or governmental officials who've taken on enormous responsibility like prosecutors can't stand up to some inflammatory language seems to me to contradict Supreme Court precedent and seems to be sort of a very troubling lack of balance on the free speech side on the part of the prosecution in this case.

Our position, Your Honor, is not that these statements in a vacuum are unprotected. It's that genteel presupposes that the restricted language is protected. As Justice Kennedy said there, that was classic political speech directed towards the government. Nevertheless, it can be proscribed if there's substantial likelihood of material prejudice to the proceedings. And how do inflammatory posts about the special prosecutor create a substantial threat to

of material prejudice to the proceeding. So that's what I think we tied back to the record, which is that there is a pattern, there's a dynamic. It's very clear that when the defendant engaged in repeated inflammatory personal attacks on someone, there's a causal link between that person and the receiving harassment, threats, and intimidation. And as I was-- Well, if there's actual threats, then that's a crime, and that can be dealt with. Yes, but-- If it's short of that, if it's

I mean, you know, again, we've had, you know, the Fifth and Sixth Circuit cases. And if you've got someone who says that prosecutors have to get me, that I think there's allegations of prosecutors racist in one of the cases, this is all a political vendetta.

Are those things allowed? They're pretty inflammatory. Well, going someone a racist is pretty inflammatory. Yes, Your Honor, the district court tried to craft a very narrow order that allows him ample room to criticize the prosecution as political. How does it do that if you say you can't target the special counsel? Well, the district court, I think, draws a very clear distinction between

attacking institutions and processes on the one hand and attacking individual trial participants on the other. So saying that the prosecution is politically motivated. The prosecution is a governmental institution, right? It's not a personal job. It is the government, right? When the prosecution speaks, even when it's an independent counsel, they speak for the United States government. So I'm not sure that line works so well. No, that's absolutely right. Maybe I was unclear. What I'm saying is

attacks on the prosecution, calling it unfair, calling it politically motivated, those are all fair game. But you can't say the prosecutor is politically motivated. That, I think, well... That would certainly count as targeting the prosecutor.

I think the special counsel himself is a somewhat unique case because he is both an individual trial participant and very much represents the institutional interests of the Department of Justice. So for him, we would concede that merely kind of referencing him or criticizing him would not... The prosecutors working with him and under his supervision, you can't say they're politically motivated?

If you're talking about individual live prosecutors, particularly if you're mentioning them by name, then the mechanism for that, as Judge Pillard alluded to, is file a motion. Certainly if you think that there's some political bias. Does he file a motion every single time he wants to say all the prosecutors in the office are politically biased against me? To be clear. It might not be true. Factually, it might be. Who knows? But...

I'm not suggesting that it is. It's just a question. But if in his mind, if in his view, all the prosecutors in the office are politically biased against me, he has to file a motion before he can say that? That's not much...

Taking much account of the First Amendment interests at stake. Well, I think if it's at such a high level of generality, everyone-- How can you tell that from this order? That's definitely targeting folks at the special counsel's office. So it's definitely prohibited. So I think that's why you're saying he has to go file a motion to make sure he's allowed to say that.

The motion I'm alluding to, Your Honor, is not a motion to ask for permission to speak about it. What I'm talking about is avoiding a two-track process here, where there are claims that get presented in court and then a whole separate effort to kind of malign the people involved, suggest that there's some improper purpose or motivation or bias that's never even raised with the court.

Court, I mean, the defendant is free, of course, if he thinks that there's a colorable claim of prosecutorial misconduct or prejudice, likewise judicial, to file a motion seeking disqualification, dismissal, and then he can talk about the fact that those findings or filings exist. But what he can't do is say, I'm going to have this churning narrative that there is a political bias, but I've never presented it to the court.

So imagine, I understand he hasn't participated in debates thus far, but if he were to choose to participate in a debate and the other folks who are competing for the Republican nomination, let's just say they spend a lot of time talking about

you're an indicted felon, you're being prosecuted by the United States government, they'll prognosticate, you could be found to be a criminal before the election, and they have all this evidence against you, the millions of pages that they talk about in the record here. And so they're going on and on and on during the debate about this criminal prosecution. And you're telling me he can't say...

Public record prosecutors paid by the taxpayers. Your names are public record. A, B, and C prosecutors. It's all a political vendetta. They all are doing the bidding of Joe Biden. Yeah, I'm not saying anything's true here. I'm just saying that that's not the test for free speech in this country, thankfully. He can't stand on the stage and say that.

So, Your Honor, he can certainly say this politically motivated prosecution brought by my political opponent, the Department of Justice, is corrupt. I will be vindicated at trial, all of that stuff. But when he starts naming... He has to speak mismanaged while everyone else is throwing targets at him. Well, and it can't be that he can't mention Mr. Smith, who, I mean, for most people in the United States, given the number of

legal battles in which this defendant is embroiled, the easiest way people have of referring to this case as opposed to the others is, oh, it's Jack Smith. Surely he has a thick enough skin. He's on this team. The two interests that you mentioned, which are one, the person would be dissuaded. I have little doubt that he will not be dissuaded. And then the other, that his

impartiality or integrity would be impugned in the face of the jury. First of all, I'm not sure I see the district court having made any such determination or even followed that reasoning. Am I missing something supportive of that link

Well, I think it's very clear that the district court is, because the whole rationale is premised on ensuring the integrity of the proceedings and the fairness of the trial, of course the court wants to make sure that the jury is not presented with extraneous information that would not be admissible in court that could prejudice their determinations. And I think part and parcel of that is how they view the trial participants. But to go back to... How can, I mean, I guess Judge Millett has already asked these questions. Given all of the...

issues that are both before the court in this case and before the public in the election. It's hard to see how this portion of the restrictive order is going to succeed in preventing a trial in the court of public opinion.

I took her order to more be focused on protecting individuals, protecting witnesses from threats, from harassment, from, you know, fawning and efforts to positively motivate them and the like. Not to shield the veneer.

But you take a different view. Well, no, I think I would agree that that is the principal motivation, certainly, shielding people from harassment, threats, and intimidation, both witnesses and other trial participants. And certainly that includes, you know, the line prosecutors handling the case. Again, special counsel himself is a...

Slightly different case because he is both an individual trial participant and a representative of the institution And so that's why we would say that that merely mentioning him would not violate it or that would not be targeting whereas in the debate your honor if I do I do any of that answer I was gonna ask a question but before I do I'm still struggling with how you distinguish, but I mean, you know, maybe the Special prosecutor is

somewhat different place, but that does not mean that prosecutors working with him, assistant prosecutors, or whatever the title deputies, are not public figures themselves. Would you agree? They can be public figures for certain purposes. Okay, so then it shouldn't matter. If I can't on the debate stage, I guess now you can do that answer on the debate stage, why can't the defendant say

A, B, and C, whoever is the prosecutorial team in the particular case, biased, racist, anti-American, whatever deplorable adjectives.

I think in context, I think you'd have to view that as basically the meddlesome priest problem. Why is he mentioning individual line prosecutors but for holding them up to scorn in the public and increasing the likelihood of their being targeted? Well, I have to say they make a good point that I'm not sure that, well, no one rid me of this meddlesome priest's

Why not have a more First Amendment debate? You'd have to really make the showing, you know, if it's sort of the godfather. Well, someone get rid of the snitch for me. That's one thing. But you'd have to make that kind of showing.

But, you know, if someone says, well, someone just make this problem go away, could he not say, well, someone just make these cases go away? It's a political vendetta. Let the American people decide. Can you not say that? Someone make these people, these cases go away, this political vendetta, that would be consistent with the order. That would not violate it, yes. So tell me about your debate, what your view of

It would be really hard. When everyone else is going at you full bore and your attorneys will have to script little things that you can say. Your Honor, I respectfully disagree that there would be anything particularly challenging about a rule that says naming individual line prosecutors somehow is too complicated, too hard to follow. He can say everything he wants to say. I don't think he can name line prosecutors by name.

I think that would be presumptively an act of targeting. Context could suggest otherwise, but naming... What context do you need? I've got my debate here. It's a matter of public records. You're receiving the pay of... You're paid by the taxpayers, and he can't say by name that person... Even once you've appeared and spoken in open court in the case against him...

Our view is that is presumptively targeting within the meaning of the order, but... It's targeting because you are not the special counsel. That's right. It's targeting because... What's your definition of targeting?

Targeting, in our view, means singling someone out for the sort of negative attention that poses an immediate risk of there being a recipient of threats, harassment, and intimidation. But negative is viewpoint-based. So the district court corrected the reason she chose targeting instead of the language that you proposed was because she didn't want to make the order viewpoint-based and make it more defensible. But I think you're right that the targeting does raise a little bit of unclarity. And I wonder whether you comment on that.

on the proposed alternative that I mentioned to Mr. Sauer, which is if the order prohibited comment on any reasonably foreseeable witness or the court staff-- but let me limit it to the witnesses. Reasonably foreseeable witness because of witnesses' potential participation in the trial. Because one of the difficulties is disaggregating the public figures who are in the political arena.

in other ways, writing books, and who are in to testify a trial here. Does that do the work that you need? Does it pose different constitutional concerns that I'm not appreciating?

I don't think it poses any additional constitutional concerns. I think that would be a perfectly valid gloss on that portion of targeting. I do think it omits another important component, which is this concern about exposing people to threat, harassment, intimidation. So if the defendant were to say, you know, not with any reference to their testimony, but to say this person, you know, is a

a coward, a liar, and a treason, and deserves the punishment of death. Without any reference to what the substance of the testimony would be, I think that would still violate the order. Except couldn't you give in context that there's no other reason that this person's being targeted? You said the reason they're talking about that is because of the testimony. Whereas when General Milley has written a book and has spoken publicly about his efforts to

shields the world from the consequences of the defendant's conduct, that has got to be fair game. Certainly fair game to comment on it. I don't think anybody suggests otherwise. But I think it's... So what's not fair game? So he can comment. Yes. And he can comment very critically...

what can he not do? Use the sort of inflammatory language that poses a significant risk that they will be subject to threats, harassment, intimidation. And so I don't think the line between saying conduct like this by the chairman of the Joint Chiefs of Staff is intolerable in democratic society and saying, on the other hand, this warrants the punishment of death is a particularly abstract or difficult line to draw. Yeah.

comments that will predictably trigger the loyalist zeal or what Mr. Sauer refers to as the heckler's veto and that just took me a long time to figure out what he was referring to in terms of heckler's veto but it's it's the triggering third party conduct what I would tag as the loyalist zeal that's what you're aiming is that that the defendant can comment on all kinds of things

But when he does so in a way likely to trigger this excessive zeal, that that is what you're, how you read the district court is targeting that kind of, or barring that kind of speech. Yes, Ron. And going back to,

Judge Mluch. Judge Mluch: I'm sorry. I didn't interrupt you asking my answer to the question. Go ahead, but then I do want to follow up more on this Mark Milley thing. General Milley. Going back to the question about what can he say during the debate, I think it's also worth looking at some of the things that he said in TV interviews and even in one of the posts that the district court used as an example in order denying the motion to stay of what's permissible. So in that post he's talking about the

political bias in this prosecution, how it's been brought by the incumbent administration. And he says, at trial, we will 100% prove with evidence that I won the election and so forth. He can always say what

every other criminal defendant in every other case is. Once we get to trial, I'm going to prove all this with evidence. The necessity to single out trial participants that have not been the subject of any sort of litigation, just as sort of a personal singling out just to put their name in the public, I think is presumptively an act of tardiness. So if I'm on J130, which is the general millie post--

Can you tell me which parts of that were-- because this was a day after General Milley did an interview about his book. It wasn't right after the indictment. It says nothing about the criminal trial or General Milley's prospective role or not in it. So tell me, what of this-- is everything OK except the punishment would have been death?

Is everything else OK? Yes, I would say so. And I think the important context to know when reviewing-- Is he wrong that-- I'm not talking factually about this particular situation, about which obviously we have none of the details before us. But is it wrong, at least historically, that-- again, not talking about this conduct in particular, but some acts of treason were published punishable by death? No, that's not wrong. And the district court was free to-- Isn't that all he said?

Well, discourse free to decide whether he included that language to make kind of the abstract historical point about what the punishment for treason was in times gone by, or was he saying it to... I think for... I've talked at least about the need to balance and, you know...

It's not how I want my children to speak, but that's really not the question. And so the question is what in here in this post, including the reference to historical capital punishment for treason, connects that to the criminal trial? Connects anything about this post to the criminal trial, the criminal process, General Milley's

Potential or not, I have no idea. Participation in the criminal trial. So on its face, it doesn't allude to his testimony, but it's important to... The timing, you don't have the timing. We do have an important distinction in timing, which is that the information about General Milley and his conversations with China, that all came out in 2021. The defendant...

had a reaction to that news then. He was not calling for him to be put to death, suggesting that death was an appropriate punishment. He started doing that once he was indicted. Wasn't this the day after General Milley did an interview about his book? Yes, yes. Okay. So it was in the news again, but his reaction to it

Post-indictment, once he knew that General Milley was a potential trial witness, was very different than what his reaction was in 2021 when General Milley was not a potential trial witness against him. So pretty much once there's an indictment, he just can't, he's really, under this order, he just really can't say anything about folks who are...

either known or reasonably foreseeable witnesses. I disagree. I think there's a perfectly comprehensible line between the sorts of things that use inflammatory and disparaging language. Can you say anything disparaging about someone? You just said inflammatory and disparaging, so take off inflammatory.

Is he allowed to say anything disparaging about someone-- we'll make it easy-- that he knows is going to be a witness now that there's been an indictment? Between now and the trial, obviously, after trial is a different thing. I think he can criticize them so long as he's not using either inflammatory language or attacking their credibility in a way that's going to shape how the jury sees them. That's another example of retrying the case in the media. I'm trying to understand with respect to these high public figures.

They, like everyone else in the country, are protected against true threats. They're protected against criminal efforts to affect their testimony. They can be prosecuted for that. I mean, the defendant could be prosecuted for threatening them in violation of the criminal law. But when we step back and think about a protective order to protect the integrity of the proceeding, the mechanism is that they would be

their testimony would be affected? I think it's... That's very hard for me to imagine. I don't think that the test is whether any particular witness who was targeted will actually change their testimony or refuse to testify. Or that it would be reasonably foreseeable that, you know, because you're right, this is a prophylactic situation. I would assume that their testimony would not be affected, that Mr. Barr, General Milley, Vice President, former Vice President Pence...

I take part of your position to be that there's a performance

of their vulnerability that then would affect unknown non-public figure witnesses? That's exactly right. There's a clear kind of knock-on effect. If you're a witness out there, and there are many, many witnesses who fall in this category, not public officials, no recourse to marshals or Secret Service protection, if they see that General Milley can be suggested he should be put to death, they see the former chief of staff can be called a coward,

then they are going to absolutely be challenged. Why would I come forward and give the facts that I know about this case if the result is going to be that I'll be subject to the same treatment? This is a very small question, and it reveals my lack of technical prowess, but is there any way preventatively to protect someone's technology? Like, let's say I'm a prospective juror. Can I be protected technologically from, like, boxing,

Well, you're asking about whether there are available technology that would sort of remove your personal information from the internet? Or just it would filter, I don't know, if things start coming through that are so fast and furious from strangers. Because it does seem like there's a real phenomenon that is actually quite disabling and terrifying. Yes, absolutely, there is. And...

But I'm wondering whether there are ways in anticipation of that, that that can be mitigated short of, because we do have, as you appreciate, the problem of

speech by the defendant and then it has a knock-on effect with the loyalists zeal and that's you know, then what causes direct efforts at threatening and harassing individuals and I just wonder if there's any non protective order, are there tools? I'm not aware of technological tools that would work

nearly as well as mitigating this prejudice at the source. If they exist, I think they are not widely used and not easy to incorporate, particularly for every witness and every potential juror and so forth.

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Can I just want to clarify a few things about the scope of the order as you see it? So you mentioned you think that one of the interests in this order is protecting sort of jury perceptions. So one of the examples in the district court transcript is essentially X is a slimy liar. Without any more context, is it the government's view that that's prohibited by this order? Yes, Your Honor. If it's directed towards the foreseeable trial, yes. So it's

Bill Barr goes on 60 Minutes and gives an interview and criticizes Mr. Trump's fitness for office in part January 6th, the events related to January 6th. Mr. Trump can't go online and say everything he just said is false.

Everything you just said is false. I think it's different from using either inflammatory language or attacking his credibility directly. I know that that's a little bit of a fine line. But yes, I think if it's a direct attack on credibility or an inflammatory comment, it's likely to result in threats and harassment. That's one thing. If it's just a generalized criticism of his performance as the attorney general or disagreement with what he has said, I think that would be another. Is slimy liar inflammatory?

I think it's inflammatory and a direct comment on credibility. What if he just said he's a liar? Well, I think that also would be a comment on credibility. That would be prohibited by the order. So it doesn't have to be calling someone a liar is self-inflammatory? A liar itself would not fall into the category of inflammatory. So any attack on the credibility of someone who's a prospective witness? Yes, yes, Your Honor. So it's deeper into the campaign.

and someone who is done testifying, but the trial is still going on, goes out and campaigns with a Democratic nominee, brings him up on stage. This is why you should vote for me. Heard what he said about what would happen.

We had another Trump administration. He's got a whole book. It's on sale at the table over there, special discount for people attending the rally. But now stand up here at the podium, Mr. X, and tell us about your experiences working with him and why I should be president instead of him. All this is going on, and you are telling me that former President Trump, the First Amendment balance in the criminal process would not allow him to say anything

Mr. Axe is a liar. He's lying in what he said. I was a good president. He can't say that? He can certainly say I was a good president. I disagree with everything that he said. I'm sorry, he can say I disagree, but he can't say he lied.

These are corner cases, I would agree, where... You didn't have any hesitation in telling me that he couldn't do it. I don't think it didn't seem like a tough case to you. He said, no, he can't call anyone a liar. You said, can't comment on credibility. Yes, we think commenting on a witness's credibility about the substance of their testimony is presumptively... He's commenting on the credibility about what they said at the political rally.

That's right. And if it goes to the substance of their testimony and it's about their credibility, then it's presumptively violent. We'll say 10% of what he said related to the trial testimony that Mr. X gave the day before. And 90% did not, but just was a tirade against the political opponent, the person on whose behalf he is speaking. A tirade against the former President Trump in the midst of the election.

So he has a lot of space to say, I disagree with everything that he said. We're going to prove at trial that what he said is not true. But when he's trying the case in the media and, you know, look, a single word like that's a lie, that's a liar.

I think it's extremely unlikely that the government's not going to be moving. Is it covered by the order? I don't want to know whether the government's moving forward. I want to know whether it falls within the scope of this order that is being challenged on First Amendment grounds. And I think you've said repeatedly that, yes, it is. Maybe you'll exercise restraint. But he says that when someone has just attacked him viciously in the press with their views, I

I shouldn't say attacked him, but has then unloaded his very political dynamite against him. And he can't say-- can he say it's untrue? Would that person that is untrue, can he say that? Yeah, yes. OK, but he can't say that person speaks-- is an untruth speaker. If it's about the-- Can he say they're an untruth speaker? Yes.

He can say that. But can't say they're a liar. But the sorts of attacks on credibility, he is a liar. So his attorneys, when he says, here's my speech, here's what I want to say, and they have to X out liar and put in untruth speaker. Not that they have to put in untruth speaker. They have to avoid a direct pat on the face. Do you have another word we could put in instead of untruth speaker? Sure. What he said was untrue, and here's why. No. He wants to talk about that person's character penchant.

for untruthfulness. That's right. I think that's exactly the point. If he's talking about his character for truthfulness or untruthfulness, that is trying the case in the media. There's a balance going that has to be undertaken here. And it's a very difficult balance in this context. And we certainly want to make sure that the criminal trial process and its integrity and its truth-finding function are protected.

We've got to use a careful scalpel here and not step into really sort of skewing the political arena, don't we?

I agree with that, but I think the order as properly interpreted strikes the appropriate balance. It leaves an ample room to respond to these things, to say that these things are untrue, to say what defendants think in every case. And what is the strongest, I mean a lot of the cases, as you're well aware, about the interest in a fair trial are in cases that are protecting criminal defendants against crime.

prejudice process, bias in the process. There are some mostly dicta about the government's interest or the broader systemic interest in a fair trial. What's your strongest support for the order in terms of the government's interest?

That's right. So the Sixth Amendment right is a right to fair trial by an impartial jury. And as the court says in Gentile, which of course was speech by a defense attorney, the state also has a right, an interest in a fair trial that needs to be protected by prohibiting prejudicial, extrajudicial speech. And that's consistent with how the court treats other Sixth Amendment rights. So for example, the defendant has a right to a speedy trial. He doesn't have a right to delay his trial for as long as he wants because the government and the public also have an interest in it.

trial, even though it's textually vested in the defendant. Likewise, the defendant has a right to a trial by jury, but he doesn't have a right to unilaterally demand a bench trial if the government on behalf of the public thinks a jury trial is more appropriate. So there's nothing unusual about saying that the right to an impartial jury means that the government also has a right to a fair trial. In the order, one of the

one of the terms is political rival. How would you define that? Is that, I mean now former Vice President Pence is no longer running. Are there no political rivals any longer or is a political rival

Is it really a synonym for public figure, like Milley, Barr, the like? I think the court intended it to be equivalent to people who are running against him. If the court felt like it was necessary to interpret political figure more broadly to encompass people like the former attorney general, former Joint Chiefs of Staff,

We would understand that I think could be a permissible gloss if necessary to make this order sufficiently narrow, but I think what the district court intended was to refer to people who were running against them. Let me just ask one more thing. You had, I believe when you sought the order that's before us, you'd also ask the district court to amend the conditions of release?

with similar terminology and the district court denied that. What's at stake as between putting terms like this in conditions of release and doing an order under Rule 57? So, two thoughts on that one.

which I hope is not too tangential to your question, but I do think my friend's concession that these sorts of restrictions, including on contacting witnesses and other portions of the bail reform act are consistent with the first amendment, I think is a fatal concession to their whole legal standard. I mean, if it's true that a defendant is consistent with the first amendment can be restricted from communicating with witnesses, associating with other people, just on the standard of, uh,

reasonable assurance of the safety of the community. And I think it follows from that that their clear and present danger test and their demand for evidence proving its imminence can't be right. What's at stake in doing it under... But don't individual terms that are imposed under the Bail Reform Act also receive constitutional scrutiny? Constitutional scrutiny, but the test is, you know, is this...

Will this reasonably assure their appearance at trial of the safety of any person or of the community? It's not -- is this -- is there compelling evidence that it clears from present danger? That's the statutory test. We don't really know what the First Amendment test is, right? I don't think we've been cited cases that involve challenge to the bail condition. Is that right? Well, that's right, Your Honor. But I think it would be quite extraordinary to suggest that his position here somehow would -- well,

I think his position here, if carried to its logical conclusion, wouldn't necessarily cast doubt on the constitutionality of all of these routinely imposed provisions of the Bail Reform Act when courts have held those for years. I think it would have to be-- I mean, there would have to be a constitutional analysis. Isn't that what Salerno did? Yes.

And so something that's more fulsome speech restriction would have to be looked at under the Constitution. Well, it'd have to be, certainly have to be looked at. And it wouldn't be whether it would reasonably assure...

their appearance at trial. I think it would. I think these sorts of restrictions are imposed all the time. Don't contact this particular person. Don't post the witness list on social media. These are done if they reasonably assure the safety of another person or the appearance of the person. And I don't think any court has really cast doubt on their constitutionality.

Going back to the question-- But yeah, you had been more broadly responding to the question that I asked about what's at stake, whether it's a Rule 57 order or a condition of pretrial release. That's right. So we request a modification of the bail conditions in response to the motion to stay. The district court denied it on procedural grounds without prejudice. It may well be that at some point in the future, either we or the district court find it necessary to also modify conditions of release.

The remedies that are available are a little bit different. The procedures are a little bit different. Here, there would have to be a show cause hearing if there's a violation, proof of willful violation for criminal contempt. So the mechanisms are slightly different. The standards are slightly different. But I don't think the constitutional analysis is any different. So the show cause hearing and proof of--

state of mind for violation of the Rule 57 order. That's right. And for revocation of bail or release? Be clear and convincing evidence of a violation of a condition. So not a ton of daylight between those, but just a slightly different standard. You have-- sorry. Were you going to make a comment? You rely on the Gentile case from the Supreme Court.

But a friend on the other side makes quite relevant point that an awful lot of the language in there and analysis was focused on the fact that it was counsel. Attorneys choose their profession, they take oaths, they are officers of the court. I don't know of anybody who chooses to be a criminal defendant. And we have as part of our criminal trial process, you know, very robust protections.

for criminal defendants. And it's true, most criminal defendants on the advice of counsel say nothing publicly. But if a criminal defendant wishes to speak, why would the genteel balance that was struck there apply specifically to criminal defendants who really have

a special status, a special protected status and their ability to resist the government's action against them.

So I think Gentile, as I think Judge Garcia was mentioning, when I was colloquially with my friend, really clarifies that what the relevant distinction is, is trial participants on the one hand, strangers to the litigation on the other. And that draws on Shepherd, which lists trial participants, including the accused, alongside defense counsel as people whose speech can be restricted if it poses a substantial likelihood of material prejudice to the proceedings.

In JTL, I think it was important to the court to explain why an attorney also was subject to those same restrictions. It might not be obvious to the lay reader why an attorney can be prohibited from making certain extrajudicial statements.

The justification for why a defendant who is charged by the grand jury with committing felony is subject to similar or comparable restrictions, I think is almost more self-evident. As Salerno said, criminal defendants are routinely subject to... If I may, I think part of the question was specifically about Gentile's emphasis on the history of regulation of attorney speech. Are you saying that there's a similar tradition and history of the regulation of criminal defendant speech to that same degree?

I think it's -- Or is it just the other pieces of the opinion? No, so I think why Gentile included a long discussion of the historic regulation of attorneys has to do with the fact that they needed a justification to help explain why attorneys who at first blush might seem like they have more speech rights than other trial participants are in fact equal to other trial participants.

Seattle Times, I think, already illustrates that a party to the litigation, even a newspaper, can be restricted from revealing comments or revealing any information they've received in the course of the litigation. And so, yes, I do think there is a long...

history of defendants being subject to restraints on their liberty as a result of the indictment. But the Seattle Times, that interest is taken care of by a separate order in this case also, right? Yes, a protective order, yes. Yes, so that's not really direct support for this kind of order. It's important because Seattle Times says specifically that when it's even a civil litigant,

who is in newspaper, who comes in with information through the court proceedings, then the standard is not kind of the Nebraska Press standard. It's not clear and present danger. It's something lower, in that case, just good cause. Why shouldn't there be three categories, those outside the trial, for media but could be other commenters, participants and the criminal defendant? Why doesn't our history

of allowing criminal defendants to vigorously and equipping them to vigorously defend against the government warrant. I don't think there's any history of regulation. Why doesn't that require something more exacting than the genteel test? Maybe not clear and present danger, but as I asked your friend on the other side, is there anything between genteel and clear and present danger?

it would be appropriate in your view or is it genteel we think the genteel standard applies certainly and um the the idea that defendants are have kind of a uniquely expanded set of rights as compared to other trial participants i think is is clearly uh contrary to um the long history of of making them subject to imprisonment or being held in detention pre-trial uh all sorts of restrictions

Being detained requires a showing, a hard actual showing of actual risk of flight or threat to public safety. We're now talking about a type of order that doesn't require immediate facts to issue. That's clear from Nebraska. It's

So you said common wisdom and judgment can be part of the analysis of what's going on in the world. And we live in a free society where it's incredibly hard for government to lock a citizen up. Has to be, because that's the first tool of oppressive governments. And so to be clear--

They need to do it sometimes and it can be done, but we have set up a lot of pro-defendant, make it really hard for the government requirements because we don't want to be like other countries. And I'm asking is why that wouldn't include allowing a criminal defendant, for example, to publicly say that person who just had a press conference denouncing me is a liar.

My reference to pretrial detention was only to illustrate kind of the most extreme. But again, if you look at the bail reform act, which I think, uh, the bail reform act, which encompasses a number of provisions that had preceded that under the court's inherent power, defendants can be made to seek a job, commence an education, um,

have a curfew. These are all standards that couldn't possibly be imposed on a third party to the litigation based on a similar showing. They're imposed because, as a result of the operation of the criminal justice system and the indictment, a defendant's... Well, and we haven't seen First Amendment challenges to those, but here we have a First Amendment challenge that we've got to grapple with. Well, I think I would sort of push back on the notion that all of the provisions of the Bail Reform Act are violative of the First Amendment. I'm not saying they are. I'm just saying that we have a particular...

restriction here. Yes. And so I guess-- We have a particular challenge that we have to resolve. And so saying a statute lets you do lots of things is not so much an answer to my constitutional question. Well, I was trying to answer in the context of the historical-- this is analogous to the analysis in genteel about the historical practice of regulating attorneys. There's also a similar historical practice about regulating the speech and association rights of defendants that has never been thought to violate the First Amendment.

So that's why I think, as Brown explained... You have no backup higher standard that you would propose? Well, I think because clear and present danger, as you mentioned in the colloquy with my friend, it's not kind of a clear doctrinal test. It's meant to get at the eminence and the significance of the threat.

You see in the Levine case, the Ninth Circuit, I can't remember the exact wording, but it's something along the lines of significant and immediate, which is the standard that actually the district court here found. So I think conceivably you could articulate a standard that was somewhere in between, but because the clear and present danger standard is sort of a malleable one that doesn't

dictated doctrinal test, I don't know that that's necessary. But our view is certainly clear and present danger. Excuse me, clear and present danger is wrong. Substantial likelihood of material prejudice is the correct one. Thank you very much. We appreciate your extra time. Thank you. All right. Sorry, Mr. Sauer, we will give you four minutes for rebuttal. Nothing further. Okay. Do you want to stand up in case my colleagues have any questions? Any more questions?

All right. Thank you very much. With that, thanks to counsel for your very helpful presentations and your patience with us. The case is submitted. Stand, please. This honorable court is not adjourned until Thursday, November 30th at 9.30 a.m.

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