Recordings of an exchange between Trump’s legal team and Judge Patricia Millet of the DC Circuit Court of Appeals show that the courtroom exchanges between the Trump team and the judge got exceedingly testy, particularly over certain subjects like the unconstitutionality of limiting political speech in certain circumstances and communications with witnesses.
As background, the issue that began the squabble is that a gag order was placed on Trump in October over his repeated attacks on Special Counsel Jack Smith, such as when the former president called the Special Counsel a “thug,” with the lower court judge finding that Trump’s posts presented a problem from a justice perspective.
MSNBC’s Katy Tur introduced the exchange and explained the background to it, saying, “Jack Smith’s team wants it, saying it’s necessary to keep people safe. Donald Trump’s team is appealing it, saying it violates his free speech and ability to campaign. And while the D.C. Circuit Court of Appeals has yet to rule, we did get some hints. Take this exchange, where Judge [Patricia] Millet presses Donald Trump’s team on whether their arguments that it’s unconstitutional to limit the political speech of a candidate would stand if Donald Trump were not running for office.”
Tur then played the clip, which began with the judge saying, “Would your position be any different a year ago?” The Trump lawyer, responding, said, “I think the gag order would still be unconstitutional.” The judge, obviously frustrated to no small degree, asked again, “Would your position be any different?” The Trump lawyer responded, “I don’t see how it would be different.”
Then, the judge getting into an issue, said, “The fact that we have a campaign going on does not matter. What matters to you, and this is still political speech, which gets very high protection no doubt.” The Trump lawyer then brought up that a campaign is ongoing, saying, “I wouldn’t put it that way. I think the campaign, in other words, we have a whole —” The judge, responding to that, snapped, “You said your position would be no different if it were a year ago!”
After ending that clip, Tur then introduced another example of the fight between the Trump legal team and judge, saying, “There was this exchange, where Trump’s team was asked to clarify where they would draw the line regarding speaking to or about witnesses, as in, when is it okay to use free speech to call out a witness or interact with a witness, and when is it not okay.”
In that testy exchange, the judge asked, “If he were to pick up the phone and call someone that is known to him to be a witness, a prospective witness in this case, and speak with that person without counsel present, would that — that would violate the restriction undoubtedly. Would the First Amendment protect that communication under your test?”
The lawyer started to respond, saying, “We have not contended that —” The judge then interrupted, snapping, “I — That’s not what I am asking! I’m asking you to apply the test to your propose — 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?”
The lawyer, asked, “Is it a phone where what’s said is “Happy Thanksgiving,” or a phone call that says —” The judge angrily responded, “I’m not telling you why! Because the order, the pre-release, the release restriction doesn’t care about the content!”
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