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An appeal court may allow Donald Trump to openly criticize prosecutor, Special Counsel Jack Smith, as a way of keeping a gag order in place.
A judge said on Monday that Trump should not have to play "Miss Manners" during political debates, while his opponents are attacking him from every direction.
The American Civil Liberties Union (ACLU) has also supported a narrowing of the gag order in Trump's election fraud case to allow him free speech on the election trail.
If the gag order is narrowed, it would embolden Trump to attack Smith on the campaign trail. He has already called Smith "deranged" to cheering supporters at a New Hampshire campaign rally.
Trump has been using Smith's election interference case as a way to galvanize support on the campaign trail and begins each rally by saluting the American flag to the sound of alleged January 6 rioters singing the national anthem. The former president's support for the rioters is a major part of Smith's case.
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 Capitol. Trump has pleaded not guilty to the charges that include conspiracy to defraud the U.S. government and conspiracy to obstruct an official proceeding.
The election interference trial judge, Tanya Chutkan, twice imposed a gag order on Trump to stop him "targeting" potential witnesses, court staff and prosecutors.
That second order came after Trump told a rally in Claremont, New Hampshire, on November 11 that Smith is "deranged" and a "Trump-hating prosecutor," and that his "wife and family despise me much more than he does."
Trump is now challenging that gag order, which the Washington D.C. court of appeal has lifted while it hears arguments from prosecutors and the former president's lawyers.
Newsweek sought email comment on Wednesday from Trump's attorney.
On Monday, a court of appeals judge, Patricia Millett, said there was a "difficult balance" with the gag order and that the court did not want to trample on Trump's free speech during presidential debates.
"He has to speak 'Miss Manners' while everyone else is throwing targets at him?" Millett asked Cecil VanDevender, a lawyer with Smith's office. "It would be really hard in a debate when everyone else is going at you full bore. Your attorneys would have to have scripted little things you can say."
"There's a balance that has to be undertaken here, and it's a very difficult balance in this context," she said. "But we have to use a careful scalpel here and not step into really sort of skewing the political arena, don't we?"
She signaled that the court may narrow Chutkan's gag order so that Trump can criticize Smith and the other prosecutors in the case.
The names of Smith and the other prosecutors are all "part of the public record," she told VanDevender.
The appeal court will issue its ruling at a later date.
After the hearing, Norm Eisen, chair of the United States Democracy Center, told CNN that the court may limit the gag order, while blocking Trump from criticizing Chutkan, the jury and the witnesses in the case.
"Smith, of course, although he's special counsel, he's very independent, he is a part of the Department of Justice. I think those kinds of accommodations are reasonable. Above all, we have to protect the judge, we have to protect the witnesses, and we have to protect the jury," he said.
Eisen, who is a former US ambassador to the Czech Republic, said that narrowing the gag order may be necessary.
"If the order has to yield a little bit there, that is a reasonable compromise to make sure that justice can operate smoothly in this case," he said.
The ACLU also wrote a submission to the court in favor of narrowing the gag order, in which it challenged the wording of Chutkan's ruling, which prohibits Trump from targeting Smith.
"The entire order hinges on the meaning of the word 'target,'" the ACLU wrote. "But that meaning is ambiguous, and fails to provide the fair warning that the Constitution demands, especially when, as here, it concerns a prior restraint on speech."
Update 11/22/23 18:24 p.m ET: This article was updated to clarify that ACLU is an abbreviation for American Civil Liberties Union.
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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