Appeals court hearing gag order in federal 2020 election subversion case

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DC Circuit Judge Patricia Millett drew a distinction between campaign rhetoric and speech “aimed at derailing or corrupting the criminal justice process.”

These comments, and other comments during the hearing, indicate that at least Millett is leaning toward imposing some kind of speech restrictions against Trump, instead of agreeing with his position, which is to fully wipe the gag order off the books.

“Criminal speech, obviously, is subject to the restriction. But core political speech, that’s part of campaign speech,” Trump lawyer John Sauer said, arguing that the restrictions on all criminal defendants against illegal speech like blatant witness tampering, are plenty to protect the integrity of the case.

Cutting him off, Millet said: “Labeling it ‘core political speech,’ begs the question of whether it is in fact political speech, or whether it is political speech aimed at derailing or corrupting the criminal justice process. You can’t simply label it that, and conclude your balancing tests that way.”

“We have to balance,” she added.

Sauer responded by arguing that the speech potentially being restricted by the gag order is “inextricably entwined with the issues that are being publicly debated in the context of the campaign.”



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