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Donald Trump's electoral interference trial must be viewed in light of a landmark fraud case from more than 20 years ago, in which a court imposed a gag order on an elected official, appeal judges have said.
In a testy exchange in Washington D.C. on Monday, appeal court judges repeatedly told Trump's lawyer that the 2000 case of U.S. vs. Brown established that participants in a criminal trial have fewer free-speech rights than other Americans.
A federal court imposed a gag order on Louisiana state official Jim Brown after he told a press conference his fraud indictment was a "political drive-by shooting."
Trump was placed under a similar gag order after calling the chief prosecutor in his case "deranged" and publicly called on his former White House chief of staff not to testify against him.
Trump was indicted on four counts in Washington D.C. for allegedly working to overturn the results of the 2020 election in the run-up to the January 6, 2021, riot at the U.S. Capitol. Trump has pleaded not guilty to the charges, including conspiracy to defraud the U.S. government and conspiracy to obstruct an official proceeding.
In the Washington D.C federal appeal court on Monday, Judge Cornelia Pillard repeatedly told Trump's lawyer, John Sauer, that a gag order was imposed on Brown and that normal free-speech rules do not apply in a criminal case.
She refused to accept Sauer's assertion that any American can say what they want, as long as their statements don't create a "clear and present danger" to others.
She demanded to know Sauer's "next best theory" and his "Plan B," as the Brown case had shown that the normal "clear and present danger" test established by the Supreme Court did not apply in criminal trials. She noted that, in Brown, an appeal court ruled that gag orders could be applied to participants in a criminal case.
Sauer had tried to assert that Trump's social media posts, in which he commented on potential witnesses in his electoral tampering case, did not amount to a clear and present danger to those witnesses or anyone else.
"It doesn't come close to the clear and present standard," he said.
Pillard, an Obama appointee, repeatedly refused to accept that argument and demanded to know what alternatives arguments Sauer was willing to use.
Judge Brad Garcia also repeatedly questioned Sauer as to why a gag order should not be imposed in light of the Brown case.
The appeal panel will rule on the gag order at a later date.
The election interference trial judge, Tanya Chutkan, twice imposed a gag order on Trump to stop him commenting about potential witnesses, court staff and prosecutors.
That followed Trump's social media remarks about Mark Meadows, his former White House chief-of-staff, in which he pleaded with him not to be like the other "cowards" who were willing to testify.
At a political rally, Trump also said that the chief prosecutor, Special Counsel Jack Smith, was "deranged" and that Smith's family were Trump haters.
Trump is now challenging that gag order, which the appeal court has lifted while it hears arguments from prosecutors and Trump's lawyers.
Newsweek sought email comment on Tuesday from Trump's attorney.
Brown was the elected Insurance Commissioner for Louisiana. In September, 1999, Brown, along with five others, including former Louisiana Gov. Edwin W. Edwards, was indicted on counts of conspiracy, mail and wire fraud, insurance fraud, making false statements, and witness tampering.
The charges all related to Brown's alleged use of his influence as insurance commissioner to help construct, along with Edwards and the other defendants, a "sham settlement" that derailed a $27-million lawsuit by the state against David Disiere, president of Cascade Insurance Co., a failed car insurance company.
In a news conference shortly after the indictment was issued, Brown declared his innocence as well as his belief that he was the victim of a "political drive-by shooting" at the hands of "an out-of-control prosecutor."
The trial court then imposed a gag order prohibiting parties, lawyers, and potential witnesses from giving "any extrajudicial statement or interview" about the trial.
Brown was acquitted of most charges, but served a 6-month federal sentence for lying to an FBI officer investigating the case. Edwards was acquitted of all charges.
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About the writer
Sean O'Driscoll is a Newsweek Senior Crime and Courts Reporter based in Ireland. His focus is reporting on U.S. law. ... Read more