CNN’s senior legal analyst Elie Honig said Tuesday that former President Donald Trump’s legal team’s point about the gag order is “right.”
A gag order issued in October by District Court Judge Tanya Chutkan is on hold pending an appeal from Trump’s legal team. The order blocks Trump from making statements targeting Special Counsel Jack Smith or his staff, the defense counsel or their staff along with court staff and “any reasonably foreseeable witnesses or the substance of their testimony.”
The panel of judges heard arguments from both sides on Monday, with the judges questioning Smith’s team on the “troubling” lack of free speech protections.
Honig said the judges must strike a “balance” between the first amendment and protecting the proceedings. (RELATED: ‘I Actually Think He’s Right’: CNN’s Senior Legal Analyst Explains Trump’s 1A Claim)
“The court has to conduct a balancing here between the First Amendment on the one hand but the district judge, [it is] the trial judge’s right and ability to protect the proceedings on the other hand. It seems clear to me … the court of appeals is not going to strike down the gag order. They’re going to leave some version of a gag order in place. But to use their terminology, they may well take a ‘scalpel to what’s there. I think they’re likely to carve it down,” Honig said.
“I think specifically, we listened to the arguments, what you can see they were a little concerned with is the restriction on Trump’s ability to talk about the prosecutors. They basically said ‘why not? Prosecutors are fair game.’ At one point they said ‘Jack Smith, he’s got thick skin. He may have to take it.’ I think they’re actually right about that. So I think we could see the gag order get carved down but left in place.”
Trump also faces a separate gag order in his New York civil fraud case, though an appeals judge temporarily lifted the order citing free speech concerns.