American court hearing recordings and interviews - USA v Donald J. Trump, oral argument re gag order to US Court of Appeals for the DC Circuit 11/20/23

Episode Date: December 2, 2023

For news coverage of this argument, see https://www.politico.com/news/2023/11/20/trump-gag-order-appeal-argument-00128093 TRUMP INDICTMENT ‘A careful scalpel’: Appeals court signals it will cut back on Trump’s federal gag order A three-judge panel consisting of all Democratic appointees suggested the gag order may have gone too far in restricting Trump’s speech. By JOSH GERSTEIN and KYLE CHENEY 11/20/2023 01:42 PM EST A federal appeals court panel appeared poised to significantly narrow a gag order imposed against Donald Trump by the judge presiding over his Washington, D.C. criminal trial. The three-judge D.C. Circuit Court of Appeals panel raised concerns that the order — which bars Trump from targeting witnesses, prosecutors and courthouse staff in the criminal case related to his effort to subvert the 2020 election — created murky restrictions that stifled the former president’s right to push back against his detractors, particularly in the heat of a presidential campaign.... [for the rest of the article, see https://www.politico.com/news/2023/11/20/trump-gag-order-appeal-argument-00128093]

Case number 23-319, United States of America versus Donald J. Trump, Mr. Sauer for the appellant, Mr. Van the Venter for the appellee. Thank you, Your Honor, and may it 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

uh a 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 four decisions have both given in the words of brown the candidate quote absolute freedom virtually unrestricted ability to comment on both the cases in front of him and make a 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 was awful for campaign 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, completely on an unsupportable heckler's veto theory. The gag order does not say, hey, your statements are going to, you know, poison the jury pool, by communicating directly with the, uh, uh, directly with, you know, the, the members of the jury pool. What you have here is a rationale that says, uh, this speech, the speech that, 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 that 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's veto kind of rationale, for criminalizing speak. 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 What are we not in a political campaign? Right, okay. I mean to fight the hypothetical, but if you're saying that it was made at a time. A year ago, if it was a year ago. Last November. At a time when he was not a presidential candidate, all the other rationales that we have relied on. Still engaged in political speech.

Absolutely. Core political speech would still 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. 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 others, we have a whole

series of independent reasons. It said 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. It's, what, is icing on the cake as far as your concern? That 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 present. 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 that would still be unconstitutional. However, one of the most power and compelling of those,

I'm sorry for an argument. So, Mr. Sauer, you point to the fact that your client is in the midst of a campaign, but I trust you agree that a prior restraint is, as a matter to whom it would apply, is subject to the highest level of constitutional scrutiny. That's your argument. Absolutely.

So, 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 in 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 against Hill, the court should engage in a plenary review of the record under de novo review.

That is a mixed question effect in law. But for the findings about what happened in the world, we look at that for clear error, and then we looked 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 is weighed against the fact that they have no evidence of any threats or harassment that have happened in this particular case, 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 I, this is just for purposes of the question, just, and I know you don't accept this, but the government's position is that we don't, that the district judge is not limited to looking only at the defendant speech that 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 it were, 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 Penn & Camp against Florida, which is at 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 we have a situation You you use the phrase including but not limited to it's 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 an totally different you know political dynamic and this points out another problem with this this sort of Heckler's veto third party argument which is that they can't draw a causal line from any sort of media posts any threat or harassment when we have wall-to-wall media coverage of this case every you know talking heads on social media and on cable news and network news are talking about it all the time so it's just focus on and again I know that 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 on that social media people are threatened and harassed and also assume for purposes of my question that the threats are not 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 something we're trying to protect against threats that that wouldn't be excluded from from first and 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, which results predictably in harassment? Let me say at least three things in response. that first of all, a finding of a 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 that 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 in. And again, that's actually right there on JA 230, right there 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 at 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 for a suppression of speech. This 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, in fact, the district court did that in this case. Counsel, counsel, I think the concern is that it steams 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 are 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 Rehnquitt's opinion in Gentile, 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, again it's all about the special roles of attorneys and it says attorneys 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 also talks about participants and there are a number of Supreme Court cases that taught 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 do not language that would tie participants to the substantial likelihood of material prejudice standard. We do 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 Shepherd, 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. mentioned landmark. It's that concerned a sanction on the press and foot no nine 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 and non. 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 evident keep in mind that you know Justice Kennedy's plurality opinion in Gentile emphasizes that the whole point of the substantial likelihood of material prejudice test was to approximate to approximate the clear and prevent danger test that we say applies and he says the difference between those is likely mayor 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 what that standard should be

other than clear and present danger? I'm simply, 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. Which is, 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 likely to have material prejudice, no case at all, adopt 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 to clear and present danger. If it's interpreted as we think it should be interpreted in light of those.

You have 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 it? I am ready to write. The two standards approximate each other,

and I'm not aware of any case adopting anything in between those two. You don't have a standard to offer the court. Our position is the clear and present danger standard. Full stop, and you have, if that is not what we adopt, then you have no other argument. You've finally broken loose from work. Three friends, one tea time, and then the text. Honey, there's water in the basement.

Not exactly how you pictured your Saturday. That's when you call us, Cincinnati Insurance. We always answer the call because real protection means showing up, even when things are in the rough. Cincinnati Insurance, let us make your bad day better. Find an agent at CINFIN.com. Good for us. 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 we've got, 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, well, 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, harassment? Well, I mean, the notion of harassment, as we cited in the POPA decision,

raised 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 that release.

Forbid him to violate the law. That is correct. And 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. It doesn't... I'm really 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. Right. Because we're dealing with the Hecler-Spego scenario. No, no. Because then that, I'm just trying to make sure I understand. And 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. other than the pre-existing prohibition against violating the law. No, that is not our position. 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 posted issue in this case and whatever else, whatever daylight there may between those, these don't satisfy. 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 that's, 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, this is oral argument. And you're here challenging and 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 interests in speech,

which you have explained are very high and the interests in protection, the integrity, 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 balanced, 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, that raises the heavy speech. I don't think that kind of labeling at 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... Counsel, you mentioned Brown a few times and the fact that that order was lifted in the run up to the election.

What actually happened in that case is that the district court, at the outset, without any evidence, The only evidence was that there was general press attention to the case, and it sua sponte entered a very broad gag order. It then lifted that in the run-up to the election. But the defendants then started sharing recordings relevant to the case with the press, and the court stepped in and re-imposed 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 of Brown, I believe it was other defendants, not the political candidate, who started leaking, you know, it was confidential transcripts of 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 get quarter we have here, right? 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 is 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 pass pattern. When the defendant speaks on this subject, threats follow. And now he's making similar statements again, where 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 actively 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 his social media posts. The only threat they talk about in their brief is from the Shry decision from the SRIE case from the Southern District of Texas. I strongly invite the court.

Well, counsel, and a death threat to the district court judge in this case. Right, Abigail Joe Shry. 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 call statement and the detention order from that case where there's evidence that that particular threatening. There's no evidence of any reading of social media. That particular threatner is an unemployed, you know, 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 reads things on social media, watches the news on TV, gets angry about it, and makes angry threatening calls. So I'm sorry, 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 impending, solidity of evidence. We have an inference from stuff that happened three years ago, convaled, you know, contradicted by the evidence we actually have here, which is world of wall. I mean, they are saying, oh, it's an imminent threat that someone could be grasped. Let me ask you, 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 him. And 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.

I was wondering about that. That would be something, for example, that might not be criminal, but would be a clear and present danger to the administration of justice. I don't want mites. I'm really trying to understand your legal test. If he were to communicate, 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, president. wouldn't 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 what's said is happy Thanksgiving or is a phone call or 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 vote. I'm not contending you. Okay. So that would not violate the First Amendment.

That is allowed under the First Amendment. Yes. That's completely consistent with the. 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, backphone, 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. Yes. Okay. 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. And it is it in this characteration to say that.

I'm not suggesting he has said that this is a, to be clear for the record, this is a hypothetical question. Does can, 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, I've told you the facts. Okay, so your answer is no. I have to know more about the context of the statement. Oh, I've given you all the context you need to know. If he does, if he does it over the phone to the perspective witness, you've said, first amendment prohibits it. If he says it with a megaphone, knowing that witnesses 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 because 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, to that witness. I would say two things in response to that. One is that there's not mere some overlap,

there's near-complete overlap between the issues in the case and the issues in the political campaign. Secondly, the whole, the statements 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. I appreciate that.

You said that there's a complete overlap, but what about the portions of the order that cover the, let's say, the courts administrative staff, there would be no reason to campaign on any of that. That was drawn. There was no evidence presented on that issue at all. He's never made a statement about court staff here. So that's your concern.

The New York situation that we briefed. There 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

work in the pending New York civil trial were absolutely core political speech. They definitely violated the First Amendment. I'm talking about in this case, though, where there's an effort philactically to protect court staff. And my premise is, or my question for you, is when you say there's complete... You've finally broken loose from work. Three friends, one tea time, and then the text. Honey, there's water in the basement.

Not exactly how you pictured your Saturday. That's when you call us, Cincinnati Insurance. We always answer the call because real protection means showing up, even when things are in the rough. Cincinnati Insurance, let us make your bad day better. Find an agent at CINFIN.com. 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-quac case. I mean, I think the need, I would say a couple of things that. We're talking hypothetically. The president has never made a statement relating to this case about any court staffer that I'm aware of that. But the order, as you well know, and as you've challenged, the order applies to court staff. With no evidence to support it, that can't satisfy any.

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 speaking restricted by the order that would not be campaign speech but for this case. And surely you can see that. I think the New York 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 if, 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, A prophylactic situation 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 prophylactic now based on...

We're not in New York. If you enter that prophylaxis now, based on no 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 prior restraint 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 is 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 it's black letter law, the Supreme Court said in Elrod against

Elrod against Burns, which is that 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. But 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? Witness?

Communicating with witnesses? That's the general standard for all those. Now, you mean for the defendant to directly communicate with a witness? That again, I think of the... First 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... What's described as a threat here is core political speech. I cannot 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, and 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. It's just not a non-ecompelling. The release condition says defendant 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 treason. don't cooperate. I am not. 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 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. Okay, so I've asked you that question. Does that communication violate the release condition? A 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, 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 the 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. Well, I mean. 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 that exact same thing, if he says the exact same thing, hey, I know, I know a witness X is out there. And that says 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 release conditions, but the context is absolutely critical.

In many of these cases, look at the post about Vice President Pence. They say, oh, look, he's commenting on Vice President Pence's testimony. actually happened there as on August 1, the indictment is released with a statement about too 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 Penske. No, no, no, tell me what fact you need to know from my hypothetical. What if that is a... Hey, witness X. I know you're

listening and then talks about prosecutors been bothering you anyone who's faithful loyal won't work with this prosecutor who's out to get me doing so lying that would be like almost like treason what if witness x has just i am i so wait so what is your what more facts do you need well what if whitney what if that is a fair response to something that witness x has said in the i'm asking you whether it's i'm not asking whether fair or not that's 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 reason. Well, again, there's another fact you need to know to tell me that it is a communication with

witness. What would that fact be? Well, if for example, if it is a statement's being made in the political arena that is not to the political arena. It's a political arena. I've just said. It's a, it's a, it's a 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 that could well violate it it seems like the way you've described it that that would be a violation of the but with the caveat there could be additional facts that would uh lead to a different conclusion so so just because i'm you know i've been struggling to try to understand what what your tasks captures right and 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 context. And so the First Amendment would allow you 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, 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 evidence going to be the tweet or the recording of the town hall meeting whatever never disputed that we never disputed that if there is a 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 I'm trying a case based on hypotheticals we are testing the legal rules that you wish us to adopt because again as the Supreme Court has I know you 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 be speaks 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 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 this. 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 are can be assumed to attend the known and probable 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 the criminal process, could they consider that well-established rule? Not under Hekler's veto theory.

They're not doing it under a theory. What I'm saying is, could they, if hypothetical, hypothetically, this hasn't happened, this is a hypothetical, a statement were made by a criminal, 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 were shown,

be a hard showing to make, that the speaker, was aware that there were known improbable consequences of this violent action and suing from his you're already shaking your head now my answer is going to be no i think that was that decades of supreme court's cape heckler's veto because the notion that oh you knew this was going to happen could be made in every single heckler veto case oh you knew when you gave a speech against you knew when you march through illinois dressed in your crazy you're balancing 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 those cases, but they didn't involve the balance that you've agreed. Do you agree we have to balance, right? The Supreme Court has said this is a, even you're clear and present danger test is a balancing test. Do you agree with that? I don't view it. I don't view strict scrutiny as a balancing test. We've argued that it's either per se invalid or the Supreme Court has said, 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 do i don't dispute that there is a balancing to be done but to me the term balance suggests a kind of looseness and the legal standards that apply and we disagree with that categorically there's the strictest of state scrutiny is a balancing test I don't describe it as such, and maybe that's why there's been miscommunication. Right, we are balancing competing. 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're formulated is clear or present danger or otherwise,

the First Amendment area, we were 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. And now that doesn't mean it's 50-50, right? Your position, of course, is it. 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 frames 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'd end up being able to shut down every speaker whoever speaks. And that's... We had a different. If we had different, first of all, not shutting down everyone who speaks. We're only, this does only affect, 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 it? statewide office, pretty important. Statewide office. And this person, hypothetical facts not before us, engages in political speech decrying the process,

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, 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, excuse me, there's a repeated pattern and so I don't, 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 questions. Nope, no, no, no. I mean again, I I if it's right if it's immediate. In other words, if you have a criminal defendant who's posting street address at home addresses of, you know, whoever it is witnesses and trial participants and there's a repeated pattern or

their family members of violence against them, you know, I'd have to know more. I'm qualifying what I say was saying I 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 Hecler's veto rationale. 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 I'm combining that with either intent or at least knowledge or recklessness on the part of the political speaker as to the entire,

entirely foreseeable and repeated pattern of consequences from that speech. Yeah, I think my response to that is that the so-called, you know, state of mind of the speaker is irrelevant in the Heckler's veto context. Right. 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 in this case because the facts here don't come anywhere close to justifying this gag order. I don't know if I know I've gone way over my time. No, that's okay.

I think as long as we have questions on the fucking. If you don't mind. 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, you know, the district court is concerned about witness intimidation. It also worked hard to give some leeway to the First Amendment vouchers. 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, 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 in 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 has to counsel clients, you're in a, you're steering, because it's so vague, you're steering towards the shoals of chilling more speech than is intended to be covered by it. So I appreciate that general point. The district court took

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, you know, particular example of those posts that you don't think has been resolved. Yeah, I think there's, there's, 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? Seems to me that's exactly what the district court was saying was allowed.

Statements about the Department of Justice and President Biden. That's sort of the literal words of the carve-out. So I would think, and 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 mean, I would refer the court to the actual social media post. When 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 Gentile. Gentile, 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. And Justice Kennedy says this is unconstitutionally vague. You know, its contours are unclear. And a lawyer cannot know when you go from the safe harbor of the general to,

the forbidden C of the elaborated. And here we have. Council, I appreciate that. Exactly on point. I appreciate that argument. I think one big distinction is that in Gentile, 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 Millie. 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 whether there's a suggestion of a threat? I mean, I think what you said powerfully illustrates the vagueness. Because if there's, if their position is there's two statements about General Millie, one is okay and the other is not okay. I don't know how. As an attorney who is 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 missionary 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.

You 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 understand you're doing your. I would cite to the court to address this, the grained standard.

The grain-in 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 it 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 clear or less clear if the order were to say that what's prohibitive, 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 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. But it would trade. 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 I would embrace an intense standard, but I don't see this as an intense 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 create 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.

If the day after the indictment, the defendant sent out on social media, quote, if you go after me, I'm coming after you. Can you say that's protective speech? Absolutely. If he had said that right outside the courthouse, do a phalanx of cameras. So he 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 have the context of that. I've given you the context. It's the same identical social media post, but it 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 you made, that that's some kind of threat to the district judge, which if it were, it rose the 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. Yet a similar threat in one of the cases that they cite the Manafort decision. 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 can see that that would, but I'm saying it's getting closer. For example, 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. We don't have to wait. Almost certainly. I mean, again, I haven't read the true threats case law, but I bet that the 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 state, the ordinary First Amendment prior restraints, strict scrutiny standard applies, but even taking that as the correct position, in contradistinction to Gentile, which, you know, 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's simply because the defendant is a presidential candidate and he wants to say. 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 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 of landmark in Penningham. And as I hear your answers, 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 cited in landmark says imminently impending based on solidity of evidence. So that does say there could be a restriction that's entered before there isn't, but there would have to be as compelling evidence. 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. I don't see, assessing the, quote, probable publicity.

right and he was justified 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 of the pretrial publicity could impinge on the right to a fair trial Of course, his conclusion is 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 v. Stewart. So I'm 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.

I believe that decision goes on to say. It validates the terms of that specific restriction, but this is prong one. Do we need to do something? The court breaks it up and is a separate little things, right? Then 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's, I'm not asked, 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. I agree that court should. But I disagree with the way that interpret, that bearer'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 be facts that could justify an order like that it would depend on the context there there's a situation in which let's say the district judge prophylactically has a has a very powerful and vocal defendant in the case and jurors are you know it's their public civic duty to to participate paid and as a as a more open measure than having a sequestered jury that the district judge wants to protect the jurors and says no 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 say two things we don't dispute that there could be an impaneling of an anonymous jury here which i think is the hypothetical well no i was saying a non anonymous jury and a protection of the jurors i think yeah i think saying, hey, the jurors are anonymous, don't post anything. No, 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 Capitol 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't imagine a justification that would justify that. So that's why I say it may depend on the context. Really? So is the information in the public domain already? With the internet nowadays, the address of every juror might well be in public domain. So district court issues the order. I should call.

The district court issues the order that Judge Pillar had referenced. And a criminal defendant then tweets out to the world, here's the name and address. of the jurors deciding my case. If it got in the public domain some other way. It's already in the public name, yes. What happened in capital city's media is this was put in the public domain by the court. There was an open hearing. 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. So the district, 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't.

You can't. I think, let me put it this way. I don't dispute. 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 with that would have already been publicized by the court justice brendon said there's no possible justification for that i mean what about now i mean in a situation where there 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 in other words as i understand the hypotheticals that no one knows who the jurors are or no one can link those names john smith and susy jones 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 if they were public if they were public because if they weren't sequestered they're not yet public nobody's published that I was put it out but they just are as as Judge Millett was saying it that you know if you have a little bit of information about a person you can find out a lot but 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 is, it's not a heckler's veto really, it's a cheerleading squad that is gonna come out and amplify or act on and perhaps overreact. I think that case would have to be assessed in capital states. You would not, I mean, give in mind that we contend that protecting

the anonymous jurors in this case is an alternative measure that should have been considered 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 corporate i'm not trying to manage this this case which the district judge we all know is very able to too um i'm asking about the again you know the hypothetical is to probe the nature of your position and it is revealing of you know the fortitude that you uh accord to the first amendment and you know the fortitude that you uh 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've stated in our briefs, we ask the court to reverse. I 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, to be clear, you know from me about who the perspective of what this is 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 state of the defendant might influence it. So 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 answer to the paper. I've told you. 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. Is it responding to something that Vice President Prince said or is it said in the vacuum?

It is the night. This is the sum total of facts you're not going to find anymore. 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, is that, first of all, is that communicating with the witness? Uh, if it's just... Violation of the release conditions. If it's just broadcasting a statement of court political speech and 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 an actual threat to the administration of justice. No, no, no, no, no. She's the district court... Only after it's happened. No, no, no. Oh, you're right. So if I said, I said, so you're saying that if Mike Penn and 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 the first amendment.

That prophylactic 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 a witness and in fact, likely in a completed communication with a 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, then 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. 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 I'm 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 Honors.

We'll hear from the government. We will give you some rebuttal time. Thank you, Your Honor. May it please the court, Cecil Van Devender on behalf of the United States. The District Court correctly found. district court correctly found the defendant's well-established practice of using his public platform to target profuse adversaries including trial participants in this case poses a significant and immediate risk to the fairness and integrity of these proceedings the order

of the district court crafted to attract 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 district court the order while it's in effect. The defense contrary. I follow up here. 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's sort of assumed that the- That's a 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 Diff report incorporated the higher test of the defendant proffer, 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 genteel test is the one that applies.

Mr. Van Deventer, where is the finding that you're relying on? It's on page two of the order, Your Honor. Palm. The follow-on order? Yes, this is at Joint Independence page number 230. Yeah. The court fines. Yes.

That such statements pose a significant and immediate risk. Exactly. That witnesses will be intimidated or otherwise unduly influence by the prospect of being themselves targeted for harassment 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 of staff?

Yeah, any effect on them of non-criminal harassment threats? Well, I think exposing trial participants, whether those are courtroom staff, blind prosecutors or others to the risk of threats harassment and 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 servant 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 in the law of demand or in doing so will i run the risk that i will be threatened my family would be threatened uh that that that you know, there's a chilling effect on a call passed over the whole proceedings if the trial

participants feel like they're at risk just as a result of their participation in case. Separately. And that's you, the way you worded that, it made it sound like before they became part of the team, like in the future 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 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 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 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 and 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 jury is presented, if the case is presented to the jury by people about whom there's been a months-long, processive drumbeat about their corruption, you know, inflammatory comments about them in the public, that could affect how the jury perceives them. Counsel, I think... Are there findings about that in the record? Well, the court clearly was focused very much not only on threats to Trump, participants, 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 after. 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 presented to the case that that certainly threatened the fairness and integrity of the isn't that exactly what the voir dire is going to sort out 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, prophylactic measures to prevent that sort of prejudice in the first place. Oh, I was just going to say, I heard you to be suggesting that it's not just that folks might be deterred from participating in the case, but that the fact that they and their family receiving threats might distract, might interfere with their ability to carry out their

roles as part of the system of justice. Is that also 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 sir 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's 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 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, weak, saying one deserves the punishment of death. That alone, I think would be sufficient for the district court to act, but you combine that with a record going back a number of years, but continuing to this day, and which numerous people have been targeted as a result of the defendant's posts. And I think there are 16 different people that are documented in the record. Eight of them are from the 2020, 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 Chuck in and then we have threats to the district attorney in New York. Threats to the district attorney and the sheriff for Fulton County. Threats to the former president. Threats into the judge chambers providing over the ongoing civil trials. 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. is wrong. 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. There's 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 protestant. 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 would be here. The sheer number combined with the testimony of the people who experienced it on the, 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, pillage point clear those are findings of historical fact that should be reviewed for clear error and because I know that you referred us to the district on page JAA 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 if I guess intimidating

communications and then inflammatory public posts. But doesn't the First Amendment protect? And this is, to be clear, these comments are 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, 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 have 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 me 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 Gentile 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, substantial likelihood of material prejudice to the proceedings.

And how does, how do inflammatory posts about the special prosecution? create a substantial threat 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, they're receiving harassment threats and intimidation. And as I was... Well, there's actual threats, then that's a crime and that can be dealt with. dealt with. Yes, but it's short of that. If it's, I mean, you know, again, we've had, we

had, you know, the, the, uh, it's then a sixth circuit cases. And if you've got someone who says that, that prosecutor's out to get me that I think there's allegations, the prosecutors, racist in one of the cases, um, this is all a political vendetta. Are those things allowed? They're pretty inflammatory. Well, they, someone to racist is pretty inflammatory. Yes, 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 an governmental institution, right? It's not a personal job. It is the government, right? When the prosecution speaks, even when it's an independent council, 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 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 line prosecutors, particularly if you're mentioning them by name, then no, that, mechanism for that as Judge Pillar alluded to is file a motion. Certainly if you think that there's some political bias on... He's a 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.

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 in 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, 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 uh to file a motion seeking disqualification dismissal and then he can talk about the fact that those file findings or filings exist but what he can't do is say i'm going to have this turning to narrative that there is political bias, but I've never presented it to the court. But so imagine, I understand he hasn't participated in debates thus far, but if he were to choose to participate in a debate and his, um, the other folks who are competing for the Republican nomination, let's just say they spend a lot of time talking about, you know, you're an indicted felon, you're going to, you're being prosecuted by

the United States government, you're, you know, they'll prognosticate, you're going to, you You could be found to be a criminal before the election. And they have all this evidence against you, the number 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. Again, 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 individuals. He has to speak misnors 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 only, the easiest way people have of referring to this case as opposed to the others is Jack Smith. Surely he has a thick enough skin.

He's on this team. The two interests that you mentioned, which are one, the, the, a 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 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 withdrawal participants. But to go back to how can I mean, I guess Judge Malta 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 opinions. Well, again, 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 and 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 merely mentioning him would not violate the order. That would not be targeting. Whereas in the debate, Your Honor, if... I do want to hear that answer. I was going to ask a question. But before I do, I'm still struggling with how you distinguish. I mean, you know, maybe the special prosecutor. is in 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, bias, racist, anti-American, whatever deplorable adjectives? I think in context, I think you'd have to view that as basically the Mendelsohn 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 will no one rid me of this meddlesome priests, might 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 high up, 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 design. Can you not say that? Someone make these people, these cases go away, the cyclical vendetta, that would be consistent with the order.

That would not violate it, yes. So tell me about your debate, what your view of, Boy, it would be really hard in the debate. When everyone else is going at you, a full bore, and, you know, your attorneys will have to have scripted 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, you know, is too complicated, too hard to follow. He can say everything he wants to say. You 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 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 an open court in the case against him. Our view is that is presumptively targeting within the meaning of the But it's targeting because you were in front of the special counsel. That's right. It's targeting because what's your definition of target? Targeting in our view means singling someone out for the sort of negative attention poses a significant immediate risk of there being a recipient of threats harassment and intimidation. But negative is viewpoint base.

So the district court corrected the reason she chose targeting instead of the language that you proposed was because you didn't want to make the order viewpoint base 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 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, in the political arena in other ways, writing books and who are in testifies to testify at trial here. Is that, 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. Do you think it omits another important component, which is this concern about exposing people to threats harassment and 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 coward, a liar, a treason, and deserves a punishment of death. Without any reference to what the substance of their testimony would be, I think that would still violate the order.

Except couldn't you, you know, give in context if 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, you know, when General Millie has written a book and is spoken publicly about his efforts to shield 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? 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 to draw. Yeah. So it's it's things 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's zeal. That's right. That's what you're aiming at 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 what how you read the district court is targeting that kind of yes or borrowing that kind of speech yes and in going back

judge much sorry well didn't interrupt you ask my answer my questions go ahead but then I do want to talk a lot more on this Mark Millie thing generally going back to the question about you know what what can he say during the debate I mean I think 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 the order denying the motion to stay of what's permissible so in that post he's talking about you know 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 you know the election that i won the election and so forth he can he can

can always say what every other criminal defendant and every other case is. Once we get the 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 targets. So if I'm on J-130, which is the General Millie Post, can you tell me which parts of that were, Because this was the day after General Millie did an interview about his book. It wasn't right after the indictment.

It says nothing about the criminal trial or General Millie's prospects of role or not in it. And so tell me, what of this, is everything okay except the punishment would have been death? Is everything else okay? Yes, I would say so. And I think the important context to know when reviewing. Is he wrong that, not talking factually about this particular situation, about which obviously we have known 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, the district was 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... What do you... I think for... Because 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 Millie's potential or not, I don't have no idea of 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. No, we do. We do have an important distinction in time is that the information about General Millie and 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 Millie 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 was, he knew that General Millie was a potential trial witness was very different than what his reaction was in 2021 when General Millie was not a potential trial witness against him. So pretty much once there's an indictment, he just can't, he's really, he's under the order, he just really can't say anything about folks who are either known or reasonably foreseeable witnesses.

I disagree. I think, I think, can he say, there's a perfectly comprehensible line between the sorts of things that use inflammatory and disparaging language that are likely... Can you say anything disparaging about someone? You just said inflammatory sparing, so take off inflammatory. Is he allowed to say anything disparaging about someone? 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 being trying 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. Well, I don't think that the test is whether any particular witness who is targeted will actually change their testimony to refuse to testify? Or that it would be reasonably foreseeable that, you know, because you're right, this is a prophylactic situation.

I was to assume that their testimony would not be affected, that Mr. Bart, General Millie, 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 re-request to marshals or secret service protection, if they see that General Millie can be suggested he should be put to death, if they see the former chief of staff can be called a coward, then they are going to absolutely be shown there. Why would I come forward and give

the facts that I know about this case? If the result is going to be, I'll be subject to the same 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 if it would filter, I don't know,

if things start coming through that are so fast and furious from strangers, is that. 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 can be mitigated short of, because we do have, as you appreciate,

the problem of speech by the defendant, And then it has the 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. 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. 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 witness, 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 he 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 the direct attack on credibility or an inflammatory comment is 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 credit. 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 liars itself inflammatory? That, liar itself would not fall into the category of inflamatory. So any attack on the credibility of someone

who's a prospective witness. Yes, yes, right. So it's deeper into the campaign. and someone who is done testifying, but the trial's still going on, goes out in 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. If 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 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. He can't, I'm sorry. He can say I disagree, but he can't say he lied. These are corner cases, I would agree, where... No, no, you didn't have any hesitation telling me that he couldn't do it.

I don't think it didn't seem to that. 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 violated. 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 violated. We'll say 10% of one 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 of the person on whose behalf he's 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 shouldn't say attack him, but has then unloaded stuff, it is a very political dark. dynamite against him. And he can't say, can he say it's untrue with that person that is untrue? Can he say that?

Yes. Okay, 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. I can't say they're a liar. But the sorts of attacks on credibility, he is a liar. So his attorney is when he says, here's my speech, here's what I want to say. And they have to X out liar and put in.

an untruth speaker. Now they have to put an untruth speaker. They have to avoid a direct pattern. 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. And there's a balance going to be. balance going that has to be undertaken here. And it's a very difficult balance in this context. We certainly want to make sure that the criminal trial process and its integrity and its truth-finding function are protected.

But 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. 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 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 a prejudice process, biased 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, what's your strongest support for for the order in terms of the government's interest? That's right. So the sixth amendment right is a right to a 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

the public also have an interest in a treaty 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 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 for like millie bar 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 are running against him. If I may make just a couple of... Let me just ask one more thing. You had, I believe when you saw, when you saw, I believe when you sought the order that's before us, we'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, Your Honor. The first, 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 reasonable assurance of the safety of the community. I think it follows from that that they're clear and present danger tests 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 receives constitutional scrutiny? Constitutional scrutiny, but the test is, you know, is this, will this reasonably assure

their appearance of the safety of any person or of the community? It's not, is this, is there compelling evidence that it clear from present danger? Well, 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, would 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'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, you know, post the witness list on social media. 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 you had been more broadly responding to the question that I asked about sort of what's at stake, whether it's a Rule 57 order or for a condition of pretrial release. That's right. So, 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, you know, 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 what's, so the show cause hearing, um, 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, that you were going to make a comment on you? on the Gentile case from the Supreme Court. But your 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, very robust protections for criminal defendants.

And it's true most criminal defendants on the advice of counsel say nothing publicly. But the 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 do, to resist the government's action against them. So I think Gentile, as I think Judge Garcia was mentioning,

when I was colloquy 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 Shepard, 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 Gentile, 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 delay reader why an attorney can be prohibited for making certain extrajudicial statements.

I think the justification for why a defendant, who is been 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's speech. Are you saying that there's a similar tradition and history of the regulation of criminal defendant's speech to that same degree? I think it's it's or is it the just the other pieces of the opinion no so I think why genteel 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, the protective order, yes. Yes, so that's not really direct support for what, for this kind of order. It's important because Seattle Times says specifically that when it's a,

even a civil litigant who is a newspaper who comes into 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, it's something lower in that case, just good cause. Why shouldn't? There would 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 figure as if 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 Gentile test? Maybe not clear and present danger, but as I asked your friend on the other side, is there anything between Gentile and clear and present danger? It would be appropriate in your view, or is it Gentile? We think the genteel standard applies, certainly,

and the idea that defendants have kind of, of a uniquely expanded set of rights as compared to other trial participants. I think it's clearly contrary to the long history of making them subject to imprisonment or being held in detention pretrial, all sorts of restrictions. Being detained requires a showing,

you know, 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, you said, common wisdom and judgment can be part of the analysis of what's going on in the world. And so, and, and we live in a, 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, you know, pro-defendants, 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, liar. So 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 the what? 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, have a curfew. These are all standards that couldn't possibly be imposed on a third party to the litigation based on a similar are 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 a particular challenge that we have to resolve.

And so saying a statute lets you do lots of things. it's not so much an answer to my constitutional question. Well, I was trying to answer it in the context of the historical, this is analogous to the analysis in Gentile 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 imminence and the significance of the threat. You see in the Levine cave, the Ninth Circuit, it's camera 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, 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 dictate a doctrinal test. I don't know that that's necessary, but our view is certainly clear and present danger. Excuse me. Ternipred danger is wrong. Substantial likelihood of material prejudice is correct. Thank you very much. We appreciate your extra time. Thank you. All right. All right. Mr. Sauer, we will give you four minutes for rebuttal. Okay, do you want to stand up in case our cons and my colleagues have any questions? Do you any more questions? All right. Thank you very much. With that, with thanks to counsel for

your very helpful presentations and your patience with us. The case is submitted.