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Now more on the Swamp versus Donald Trump with developments today at the DC Circuit on Trump's appeal of his gag order. Now, this was a two-hour hearing. The three-judge panel hinted that it would affirm that gag order issued by Judge Amy Chitkin, but that they also may limit the reach of the order with one judge saying this. I'm not shutting down everyone who speaks. This is only affecting speech temporarily during a criminal trial process by someone who has been indicted as a felon. No one here is threatening the First Amendment broadly. Joining me now, David Schoen, former Trump impeachment attorney in Saul Weizenberg, former deputy independent counsel, Fox News contributor. Now, Doug, I know you've argued cases before a few of these federal appellate court judges. They seem skeptical about Trump's core political speech argument that Judge Millette was referencing there.
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Yeah, they seem skeptical about that. On the other hand, they recognize that this order has got to be narrowed. They have vague terms in it like targeting, targeting a witness and so on. To give you an example of how vague and unenforceable that term is. By the way, as you well know in the free speech area, when a term is vague, it chills speech automatically because an actor doesn't know when he or she can speak. Judge Judkin herself, when given an example by Jack Smith, the special counsel, cited that example and said, Well, that almost certainly violates the targeting provision. If she doesn't know what violates it, how can a criminal defendant then risk real serious consequences under such an order? I think the order is going to be narrowed. I'm not in favor of any gag order. It's a prior restraint. The court has dealt with this before in Nebraska Press. It doesn't meet the criteria there for issuing a gag order. This is a defendant, remember, not a lawyer. The DC court has very stringent rules under Rule 57.7, a local rule, and what a lawyer can say. A criminal defendant is an innocent citizen as a matter of law, and I like to look at it as his or her first and sixth Amendment rights, right to free speech, right to a public trial, has to be measured by the fifth Amendment right, which is the presumption of innocence.
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Well, Saul, to this point now, the panel may end up allowing Trump to continue to criticize the special counsel, Jack Smith, but it would keep the ban in place for witnesses and court staff. Explain that.
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Well, listen, I listened to almost all of the argument, Laura, and this order is not going to stand in its current form. It is going to be significantly narrow. Two things really striking that stood out today. Number one, the example that everybody is horrified by is Trump's statement about General Milley, that his actions were treasonous after the election, and that in the past, that would be punishable by death. They pretty much made it clear that that is pure protected speech. They pointed out that Trump's statement was in response to a TV appearance by Milley the previous day where he was Hawking his book. I found that very significant. Also significant at another point is that the government made a very important concession. They actually said that he can, that Trump can name the prosecutors, the prosecutor, Jack Smith, by name. That goes beyond Judge Chuckin's order. I thought that was very significant. They said he can do it as long as he does it at a high level of generality. Then the court said, Wait a minute. That's classic vague speech, isn't it? Why can't he name Smith by name? And why can't he name the individuals who are on Smith's staff?
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I found those to be very significant things. This is going to be narrowed significantly.
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Now, David, they're trying to justify the gag order any way they can here. Watch this.
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They are arguing this as if they're talking about a statute passed by Congress to restrict the speech of a candidate. That's not what this is at all. This is an order to restrict the speech of a defendant in a high-profile criminal case. The judge has a duty to protect the integrity of the case.
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David, the integrity of the process when the former President of the United States is part of his campaign is the corruption in our legal system? First of all. This takes on a whole new level, does it not?
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Absolutely. First of all, it's a matter of great public interest. If President Trump thinks that the process stinks and has no integrity, he's entitled to say it like any other American is entitled to say it, call it like it is. The court, by the way, was aware. They've got short shrift today, but they were of the campaign, and they said, How is he going to be able to respond to a tax on him based on the indictment if he's not permitted to speak about the process? The hypocrisy surrounding this is unbelievable. If you're concerned about tainting a jury pool, how about this Judge Judkin's previous statements in other cases holding President Trump responsible for January sixth before he's ever been tried? How about the speaking indictment, 45 pages by the government of unproven allegations that anyone can download and have in front of them every day. Just last Friday, Judge Chuckin denied a defense motion to strike inflammatory allegations from the indictment, saying, Well, we can deal with any prejudice from this publicity through Vareer. Why is it when the government says something, it can be addressed through Vareer? But if the defendant, President Trump, wants to say something, it should be barred.
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Yeah. And so then in that Colorado case, the judge there on the other issue of trying to pull him from the ballot, a separate case, obviously, on 14th Amendment grounds in Colorado, the judge there ruled that Trump, they made a factual finding saying that Trump is responsible for inciting an insurrection, but he can remain on the ballot. Well, the left went crazy with that all day long saying that was fantastic because it sets a factual predicate in Colorado. Is that significant today?
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I don't think it's significant. The significant thing in that opinion was that she held back. She realizes that the historical record is very mixed on this. So she exercised judicial restraint. You can tell it killed her. But what some judge in Colorado thinks about insurrection, I don't think it's going to have any effect on any of the federal cases here.
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All right. Well, if they take it to the Supreme Court, I think they wanted to establish that factual predicate, but who knows what will happen? But David and Saul, you'll be with us all the way. Thank you. Hey, Sean.
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Hannity here. Hey, click here to subscribe to Fox News, our YouTube page and catch our hottest interviews and most compelling analysis, you will not get it anywhere else.
