[00:00:00] Speaker 02:
Case number 23-3190, United States of America versus Donald J. Trump.

[00:00:07] Speaker 02:
Mr. Sauer for the appellant, Mr. VandeVander for the appellee.

[00:00:12] Speaker 04:
Thank you, Your Honor, and may it please the court, John Sauer appearing on behalf of the appellant, President Donald J. Trump.

[00:00:26] Speaker 04:
The gag order in this case installs a single federal district judge as a filter for core political speech between a leading presidential candidate and virtually every American voter in the United States at the very height of a presidential campaign.

[00:00:42] Speaker 04:
The order is unprecedented and it sets a terrible precedent for future restrictions on core political speech.

[00:00:49] Speaker 04:
The Supreme Court said in Republican Party of Minnesota against White that we have, quote, never allowed the government to prohibit candidates from communicating relevant information to voters.

[00:00:59] Speaker 04:
And it's not the role of the government to dictate what topics are appropriate or necessary to discuss in the context of a political campaign.

[00:01:08] Speaker 04:
The gag order does both of those things.

[00:01:10] Speaker 04:
Cases involving gag orders imposed on criminal defendants or political candidates, the Brown and Ford decisions,

[00:01:16] Speaker 04:
have both given, in the words of Brown, the candidate, quote, absolute freedom, virtually unrestricted ability to comment on both the cases in front of him and make public statements that relate to his campaign as it relates to the case.

[00:01:29] Speaker 04:
So this is a radical departure from the only cases that have considered this particular form of restriction, a restriction on a criminal defendant who is all for campaigning for public office.

[00:01:38] Speaker 04:
And it does so in the context of a hotly contested campaign for the highest office in the United States of America.

[00:01:45] Speaker 04:
In addition, the gag order, another unprecedented break with jurisprudence, relies completely, completely on an unsupportable heckler's veto theory.

[00:01:56] Speaker 04:
The gag order does not say, hey, your statements are going to poison the jury pool by communicating directly with the members of the jury pool.

[00:02:06] Speaker 04:
What you have here is a rationale that says this speech, the speech that is targeted by the gag order, might, there's no evidence of this, but it might someday inspire some random third party to engage in some action that might result in harassment or threats to witnesses.

[00:02:23] Speaker 04:
This is a quintessential heckler's veto, which the Supreme Court has not traditionally subjected to scrutiny, even very strict scrutiny, but said is just categorically unconstitutional.

[00:02:33] Speaker 04:
And the reasons for that, if you look at the heckler's veto cases in virtually every case,

[00:02:37] Speaker 04:
The argument justified in the Heckler's veto is we have an absolutely compelling reason to do this, because the speech that we want to suppress is going to inspire rioting, violence, injury, death, whatever it is, and the Supreme Court has said again and again, you cannot do that.

[00:02:51] Speaker 04:
All the gag order cases relied on the government do not

[00:02:54] Speaker 04:
address this particular Heckler's Veatch, though, kind of rationale for criminalizing speech.

[00:03:00] Speaker 04:
And the Supreme Court has held it again and again that that is not a permissible rationale to silence anyone.

[00:03:06] Speaker 04:
Those cases go back decades, and that government rationale goes back to at least the city of New York in the 1860s.

[00:03:11] Speaker 02:
Would your position be any different if it were a year ago?

[00:03:18] Speaker 02:
If the time were just a year ago, so we're much further removed from a political campaign?

[00:03:23] Speaker 02:
Would your position be the same or different?

[00:03:25] Speaker 04:
Certainly a year ago, we would still be in the midst of a political campaign.

[00:03:29] Speaker 02:
I believe President Trump... When are we not in a political campaign?

[00:03:32] Speaker 04:
I don't mean to fight the hypothetical, but if you're saying that it was made at a time... A year ago.

[00:03:38] Speaker 02:
If it was a year ago.

[00:03:39] Speaker 02:
Last November.

[00:03:40] Speaker 04:
At a time when he was not a presidential candidate.

[00:03:42] Speaker 02:
All the other rationales... But certainly still engaged in political speech.

[00:03:46] Speaker 04:
Absolutely, core political speech would still apply.

[00:03:47] Speaker 02:
So would your position be any different a year ago?

[00:03:50] Speaker 04:
I think the gag order would still be unconstitutional under these conditions.

[00:03:53] Speaker 02:
Would your position be any different?

[00:03:55] Speaker 02:
I don't see how it would be different.

[00:03:56] Speaker 02:
Okay, so the fact that we have a campaign going on does not matter.

[00:03:59] Speaker 02:
What matters to you, and this is still political speech, which gets very high protection, no doubt.

[00:04:06] Speaker 04:
I wouldn't put it that way.

[00:04:07] Speaker 04:
I think that the fact that the campaign, in other words, we have a whole series of independent... It's said your position would be no different if it were a year ago.

[00:04:13] Speaker 04:
Our position would be that it's still unconstitutional, but the campaign adds a digital and very powerful reason why it is unconstitutional.

[00:04:19] Speaker 02:
But it's, what, it's icing on the cake as far as you're concerned.

[00:04:22] Speaker 02:
That your position would be exactly the same without a political campaign.

[00:04:25] Speaker 04:
I would say it's the crown jewel of a series of at least seven fundamental precincts.

[00:04:29] Speaker 02:
You need a crown jewel?

[00:04:30] Speaker 02:
I mean, you think the outcome should be exactly the same whether or not there's a political campaign underway.

[00:04:35] Speaker 04:
Yes, I believe there are at least seven independent First Amendment precepts that are violated by this gag order.

[00:04:39] Speaker 04:
Campaign speech is one of them.

[00:04:41] Speaker 04:
Heckler's veto is another one.

[00:04:42] Speaker 04:
So for example, a year ago, we would still, if we had the same gag order, we would still be dealing with a categorically invalid Heckler's veto type theory.

[00:04:49] Speaker 04:
We would still be dealing with core political speech.

[00:04:52] Speaker 04:
Again, we would still be dealing with a situation where we have restriction on criticism of public figures that violates the whole public figure doctrine.

[00:04:59] Speaker 04:
There'd be a whole series of reasons it would still be unconstitutional.

[00:05:02] Speaker 04:
However, one of the most power and compelling of those, I'm sorry for an argument.

[00:05:05] Speaker 03:
So Mr. Sauer, you point to the fact that your client is in the midst of a campaign, but I trust you agree that a prior restraint is, no matter to whom it would apply, is subject to the highest level of constitutional scrutiny.

[00:05:22] Speaker 03:
That's your argument.

[00:05:23] Speaker 03:
Absolutely.

[00:05:24] Speaker 03:
And I also trust that you agree that your client is not above the law that applies to all other Americans.

[00:05:32] Speaker 04:
He's subject to the First Amendment principally, but yes.

[00:05:35] Speaker 03:
He's subject to the law that applies to everyone.

[00:05:37] Speaker 03:
He's not above the law.

[00:05:39] Speaker 03:
We certainly haven't argued that, Your Honor.

[00:05:41] Speaker 03:
Right.

[00:05:41] Speaker 03:
And so the district court found that when the defendant has publicly attacked individuals, including on matters related to this case, those individuals are consequently threatened and harassed.

[00:05:56] Speaker 03:
And we view that factual finding for clear error, right?

[00:05:59] Speaker 04:
No.

[00:06:00] Speaker 04:
In a First Amendment case, I believe, as we cite in our standard review section under Houston against Hill, the court should engage in a plenary review of the record under de novo review.

[00:06:09] Speaker 04:
That is a mixed question of fact and law.

[00:06:10] Speaker 03:
But for the findings about what happened in the world, we look at that for clear error.

[00:06:15] Speaker 03:
And then we look at the First Amendment implications de novo.

[00:06:19] Speaker 04:
Looking at that particular finding, the court would have to look at it in light of the evidence in the record, which shows that that's all based on evidence that's three years old.

[00:06:26] Speaker 04:
and has went against the fact that they have no evidence of any threats or harassment that have happened in this particular case, even arguably caused by the speech that's challenged here when the case has been pending for over three months, and the defendant has made public comments about the case almost incessantly.

[00:06:40] Speaker 03:
So that's the- So the government's position, and I, this is just for purposes of the question, and I know you don't accept this, but the government's position is that we don't, that the district judge is not limited to looking only at the

[00:06:55] Speaker 03:
defendant's speech as it relates to this case, but the government identified a dynamic, not just exclusive to this case, whereby when the defendant has publicly attacked individuals, including but not limited to the facts of this case, those people are threatened and harassed.

[00:07:16] Speaker 03:
If we were satisfied, and I know you're not satisfied, but if we were satisfied that evidence supported that finding,

[00:07:24] Speaker 03:
What more would be needed in your view?

[00:07:27] Speaker 03:
What more would be needed to support the district court's order and order?

[00:07:34] Speaker 04:
I would quote from Landmark Communications and its quotation from Penn and Camp Against Florida, which is that the standard that has to apply to a gag order applying or even its restriction on speech that relates to criminal proceedings is that the substantive evil that must be addressed must be extremely serious and the degree of eminence must be extremely high and

[00:07:56] Speaker 04:
remote or even probable but imminently impending and all that has to be proven by quote solidity of evidence and we have a situation you you use the phrase including but not limited to the fact we have here is no evidence at all of threats or harassment in this particular case all the evidence of threats and harassment go back three years ago

[00:08:15] Speaker 04:
to a totally different political dynamic.

[00:08:18] Speaker 04:
And this points out another problem with this sort of heckler's veto third-party argument, which is that they can't draw a causal line from any social media posts, any threat of harassment, when we have wall-to-wall media coverage of this case.

[00:08:33] Speaker 04:
Talking heads on social media and on cable news and on network news are talking about it all the time.

[00:08:39] Speaker 03:
Just focus on, again, I know that you dispute this and you think that the record is inadequate.

[00:08:45] Speaker 03:
were the record indisputably adequate to support a finding of a dynamic that when people are named, and as you point out, this is a defendant who has millions of social media followers.

[00:08:58] Speaker 03:
So when people are named on that social media, people are threatened and harassed.

[00:09:04] Speaker 03:
And also assume, for purposes of my question, that the threats don't rise to the level of true threat that would be unprotected by the First Amendment.

[00:09:13] Speaker 03:
But we're talking about,

[00:09:15] Speaker 03:
In this case, I think something we're trying to protect against threats that wouldn't be excluded from First Amendment protection.

[00:09:22] Speaker 03:
In that situation, non-public figures who are witnesses, non-public figures who are going to be witnesses, what about the interest of the court in a fair and impartial trial is insufficient?

[00:09:41] Speaker 03:
to protect those witnesses from that dynamic results predictably in harassment.

[00:09:49] Speaker 04:
Let me say at least three things in response to that.

[00:09:50] Speaker 04:
First of all, a finding of a dynamic strikes me as a way to bake in speculation and hypothetical as a substitute for evidence.

[00:09:58] Speaker 04:
So if the district court said, I find a dynamic, I think that would be deeply problematic.

[00:10:02] Speaker 04:
It would have to be probed to see what the actual evidence was.

[00:10:05] Speaker 04:
as the question of sort of witnesses who are not public figures.

[00:10:09] Speaker 04:
There is no evidence of a single post about them in this particular case.

[00:10:13] Speaker 04:
So that piles hypothetical and speculation upon speculation.

[00:10:17] Speaker 04:
We've cited the Collins decision for saying you can't restrict speech based on secondary effects.

[00:10:21] Speaker 04:
That's like tertiary or quaternary effects.

[00:10:24] Speaker 04:
I don't even have an adjective for how many steps removed it in.

[00:10:27] Speaker 04:
And again, that's actually right there on JA 230, right there in the rationale of the

[00:10:31] Speaker 04:
The district court judge is, well, we don't have any threats of harassment in this case even though we've had wall-to-wall media coverage of it and wall-to-wall public statements going back for three months.

[00:10:40] Speaker 04:
But there might some day be threats of harassment to the only public figures that they've identified who are at the highest echelons of government.

[00:10:46] Speaker 03:
I was actually focusing for a reason on non-public.

[00:10:50] Speaker 03:
And just to make your position, just to challenge you a little more, the order is intentionally prophylactic.

[00:10:59] Speaker 03:
It's intentionally protective against harms that have yet to occur.

[00:11:04] Speaker 03:
And in the distinctive context of protecting the integrity of a trial process, that can be of sufficient interest.

[00:11:14] Speaker 04:
The standard for a suppression of speech, just prophylactic in the situation where the solidity of the evidence shows an imminently impending danger.

[00:11:24] Speaker 04:
We are nowhere near that in this particular case.

[00:11:26] Speaker 04:
And as I was saying about non-public figures, there's no evidence of any statement in this case that relates to any non-public figure.

[00:11:32] Speaker 04:
So again, you're piling that would be, in fact, the district court did that.

[00:11:35] Speaker 00:
Council council, I think the concern is that

[00:11:39] Speaker 00:
it seems at times your position would be that the district court's hands are tied until we actually know there has already been harm to the integrity of the trial.

[00:11:49] Speaker 00:
For example, that a witness has been intimidated.

[00:11:53] Speaker 00:
And so I think the questions we're trying to get at what that's short of that.

[00:11:58] Speaker 00:
You certainly can't be saying that's what we need.

[00:12:00] Speaker 00:
What evidence short of that would the district court need before it could step in and enter an order like this?

[00:12:05] Speaker 04:
solidity of efforts that demonstrated an imminently impending threat.

[00:12:10] Speaker 04:
And again, that's Supreme Court case law going back to that.

[00:12:13] Speaker 00:
But I think we're going back to the legal standard.

[00:12:14] Speaker 00:
You mentioned the Fifth Circuit's decision in Brown.

[00:12:17] Speaker 00:
And that court rejected the argument you're making today, which is essentially that the district court has no authority to regulate the speech of a criminal defendant unless it's entirely unprotected by the First Amendment.

[00:12:30] Speaker 00:
And what the Fifth Circuit said, drawing on Gentile and even the landmark communications case,

[00:12:35] Speaker 00:
is that the Supreme Court has drawn a distinction between speech restrictions on those who are participants in the trial and those who are strangers to it.

[00:12:45] Speaker 00:
I believe that's essentially a direct quote from genteel.

[00:12:48] Speaker 00:
So what's your best argument that criminal defendants shouldn't be treated as within that category of participants in the trial?

[00:12:56] Speaker 04:
If you look at Justice Rehnquist's opinion in genteel, it's 12 pages in section 2.

[00:12:59] Speaker 00:
Which was not a controlling opinion.

[00:13:02] Speaker 00:
The controlling opinion is Justice Rehnquist on the legal standard.

[00:13:05] Speaker 04:
Exactly right.

[00:13:05] Speaker 04:
I'm talking about section two of that opinion is the controlling opinion of the court.

[00:13:08] Speaker 04:
It goes on for 12 pages about the specific.

[00:13:12] Speaker 04:
I mean, again and again and again, it's all about the special roles of attorneys.

[00:13:15] Speaker 04:
And it says, attorneys, officers of the court, attorneys can be subjected to particular restrictions that it directly contrasts with, for example, the rights of ordinary citizens or the common rights of the person.

[00:13:26] Speaker 02:
It also talks about participants.

[00:13:29] Speaker 02:
And there are a number of Supreme Court cases that distinguish participants

[00:13:34] Speaker 02:
in a criminal trial from those who are outsiders to the criminal trial.

[00:13:38] Speaker 02:
Would you at least agree that there is that language in Supreme Court cases?

[00:13:42] Speaker 04:
There is some language.

[00:13:43] Speaker 02:
There is that language in Supreme Court cases, correct?

[00:13:46] Speaker 04:
Not language that would tie participants to the substantial likelihood of material prejudice standard.

[00:13:50] Speaker 00:
We do just want to be a little more precise about this.

[00:13:52] Speaker 00:
So the quote from Gentile is there's a distinction between restrictions on the speech of those participating in the litigation and strangers to it.

[00:14:00] Speaker 00:
And it goes on to say of Shepherd,

[00:14:02] Speaker 00:
sort of canonical case about a trial court's obligations.

[00:14:05] Speaker 00:
Quote, we expressly contemplated that the speech of those participating before the courts could be limited.

[00:14:11] Speaker 00:
You mentioned landmark.

[00:14:13] Speaker 00:
It's that concern a sanction on the press and footnote nine of that opinion says if this was limited to those who participated in the proceedings, it might well save the statute and our job here

[00:14:26] Speaker 00:
is to read these Supreme Court cases.

[00:14:29] Speaker 00:
And it seems like they're drawing a very clear line of participants and non.

[00:14:35] Speaker 04:
I don't hear anything or see anything in any of that language that says therefore you're subject to the substantial likelihood of material prejudice test.

[00:14:42] Speaker 04:
And we do dispute that.

[00:14:43] Speaker 04:
But even if that test applies, you would have to have much, much more evidence.

[00:14:46] Speaker 04:
Keep in mind that Justice Kennedy's plurality opinion in Gentile emphasizes that the whole point of the substantial likelihood of material

[00:14:53] Speaker 04:
Pregis test was to approximate, to approximate the clear and prevent danger test that we say applies.

[00:14:58] Speaker 04:
And he says the difference between those is likely mere semantics.

[00:15:01] Speaker 04:
Whatever that standard means, it is an exacting standard that is not even plausibly satisfied.

[00:15:06] Speaker 02:
But if there is a different standard for participants as opposed to outsiders, if there is, this is my question to you, if there is a different standard for participants than there is for outsiders,

[00:15:23] Speaker 02:
So please take that premise.

[00:15:27] Speaker 02:
There has to be something different from clear and present danger because then there would be no different standard for participants.

[00:15:33] Speaker 02:
So if we read these cases to mean what they say, there is a different standard for participants than outsiders to the proceeding.

[00:15:44] Speaker 02:
Do you have an argument as to what that standard should be other than clear and present danger?

[00:15:51] Speaker 02:
This is sort of like your plan B, if you have it.

[00:15:54] Speaker 02:
If there's a different standard, what should it be?

[00:15:57] Speaker 04:
No one that I'm aware of has cited any case law that specifically addresses that question.

[00:16:01] Speaker 04:
That's why I'm asking you.

[00:16:03] Speaker 04:
To my mind, that's a powerful reason to adopt the clear and present danger stat.

[00:16:06] Speaker 04:
In other words, we say clear and present danger.

[00:16:08] Speaker 04:
They say substantial likelihood of material prejudice.

[00:16:11] Speaker 04:
No case at all adopts some intermediate standard between those two.

[00:16:15] Speaker 04:
Well, you just told me substantial likelihood is very close.

[00:16:18] Speaker 04:
And that's why there's nothing in between them, right?

[00:16:20] Speaker 02:
OK, so then substantial likelihood may be close enough to clear and present danger.

[00:16:24] Speaker 04:
If it's interpreted as we think it should be interpreted in light of this.

[00:16:26] Speaker 02:
You haven't told us how it should be interpreted different from clear and present.

[00:16:30] Speaker 02:
I'm going to say this again.

[00:16:31] Speaker 02:
The answer is not.

[00:16:33] Speaker 02:
clear and present with different labels.

[00:16:36] Speaker 02:
If there's something less than clear and present.

[00:16:39] Speaker 02:
Otherwise, there's no differentiation between participants and outsiders.

[00:16:42] Speaker 02:
So if there is something less than clear and present danger, how would you articulate it?

[00:16:47] Speaker 02:
I am ready to write.

[00:16:48] Speaker 04:
The two standards approximate each other.

[00:16:51] Speaker 04:
And I'm not aware of any case adopting anything in between those two.

[00:16:54] Speaker 02:
You don't have a standard.

[00:16:55] Speaker 02:
Correct.

[00:16:56] Speaker 02:
Our position is the clear and present danger standard.

[00:16:58] Speaker 02:
Full stop.

[00:16:58] Speaker 02:
And if that is not what we adopt,

[00:17:01] Speaker 02:
then you have no other argument for us.

[00:17:04] Speaker 04:
I would have to invent a standard.

[00:17:07] Speaker 02:
No, I'm asking.

[00:17:07] Speaker 02:
Well, sometimes that's what the law requires.

[00:17:09] Speaker 02:
So if we need to come up with something that still treats participants different from outsiders, and if outsiders get clear and present, that necessarily means participants get something less, that's what this case is about.

[00:17:24] Speaker 02:
And you say the district court here applied the substantial likelihood test.

[00:17:30] Speaker 02:
You've got nothing in between to offer us.

[00:17:32] Speaker 04:
I would say, clear and present danger is the standard that applies.

[00:17:35] Speaker 04:
If the court applies substantial likelihood of material prejudice, it ought to take count of the effect that approximates the clear and present danger test.

[00:17:41] Speaker 04:
And the showing that was made in the district court here comes nowhere near satisfying either of those tests.

[00:17:46] Speaker 02:
And what would, we'll give you, whatever time, we'll let you know.

[00:17:50] Speaker 02:
When there's, in your definition or application of clear and present danger, and that's an incredibly strict test,

[00:17:59] Speaker 02:
Is there any limitation on a participant's speech?

[00:18:05] Speaker 02:
What does it capture that is not already outlawed by 1512 or something else?

[00:18:12] Speaker 02:
What speech would be captured that isn't already illegal in your mind?

[00:18:16] Speaker 02:
Can you give an example of some speech that would be covered by your clear and present danger test that isn't, in fact, unlawful form of threats, harassments?

[00:18:26] Speaker 04:
Well, I mean, the notion of harassment, as we said in the POPA decision, raises the problem that some of the, quote, harassment may actually be First Amendment protected speech.

[00:18:34] Speaker 04:
So I don't think that would be it.

[00:18:36] Speaker 04:
Are there cases that would address speech that is not criminal, right?

[00:18:40] Speaker 04:
In other words, you say 1512.

[00:18:41] Speaker 02:
Can you give me an example of some speech that is covered by your test that isn't already covered by the criminal law?

[00:18:52] Speaker 04:
I can't think of a hypothetical as I stand here.

[00:18:54] Speaker 02:
So really your point then is that there can be no limitation on speech because his release conditions already forbid him to violate the law.

[00:19:06] Speaker 02:
The conditions of release.

[00:19:07] Speaker 02:
Forbid him to violate the law.

[00:19:09] Speaker 02:
That is correct.

[00:19:10] Speaker 02:
And you can't give me an example of speech that could be regulated

[00:19:14] Speaker 02:
That doesn't violate the law.

[00:19:16] Speaker 04:
I'm thinking of all the social media posts, for example, that are... You can make one up.

[00:19:21] Speaker 02:
I'm asking you to make something up here and not really refer to something that happened.

[00:19:26] Speaker 02:
I'm not asking you to say that.

[00:19:28] Speaker 02:
I have trouble.

[00:19:29] Speaker 04:
I cannot think of a hypothetical that would not be a violation of the law because we're dealing with the heckler's veto scenario.

[00:19:35] Speaker 02:
No, no.

[00:19:37] Speaker 02:
I'm just trying to make sure I understand.

[00:19:38] Speaker 02:
It may be right.

[00:19:41] Speaker 02:
We're dealing with political speech here.

[00:19:42] Speaker 02:
But your position is...

[00:19:45] Speaker 02:
that at least when the participant in trial is engaged in political speech, there can be no limitation imposed to protect the administration of justice in the criminal proceeding, other than the pre-existing prohibition against violating the law.

[00:20:09] Speaker 02:
No, that is not our position.

[00:20:10] Speaker 04:
OK, you just couldn't give me an example.

[00:20:11] Speaker 04:
I've been asked for a hypothetical with no evidence at all to show

[00:20:15] Speaker 04:
how there might be some daylight between those two standards.

[00:20:17] Speaker 04:
And I frankly am thinking of all the social media posts that issue in this case and whatever else, whatever daylight there may be between those, these don't satisfy me.

[00:20:25] Speaker 02:
This is a test that you've proposed.

[00:20:26] Speaker 02:
And so I'm trying to see if you have a conception of how it works that would allow a court to still protect the criminal proceeding beyond its prohibition on violating the law.

[00:20:38] Speaker 02:
And this is your test.

[00:20:41] Speaker 02:
And so it seems incumbent upon you to be able to explain to me

[00:20:45] Speaker 02:
what a court could do to protect the integrity of criminal proceedings that isn't already covered by a don't violate the law, don't violate the criminal law.

[00:20:56] Speaker 02:
Under Nebraska Press Association, the heavy burden of demonstrating, quote.

[00:21:00] Speaker 02:
That's not, this is oral argument and you're here challenging an order and asking us to adopt a legal test

[00:21:08] Speaker 02:
I mean, what's been crystal clear from the Supreme Court is they've even said many times recently, clear and present danger isn't a mechanical formulation.

[00:21:16] Speaker 02:
It's meant to be a balancing test, a test that balances the interest in speech, which you have explained are very high.

[00:21:25] Speaker 02:
and the interests in protecting the integrity of the criminal process and the criminal proceeding, which is also a weighty constitutional interest.

[00:21:35] Speaker 02:
And so the reason I'm asking this question is to see if there's any balance, which is what the Supreme Court tells us to do in the test that you proposed.

[00:21:44] Speaker 02:
And so tell me how it balances if you can't give me anything other than a criminal law violation that would satisfy your test.

[00:21:53] Speaker 04:
The phrase, I believe, that the Fifth Circuit used in Brown, a case heavily relied on the government, is absolute freedom in the context of a political campaign.

[00:22:01] Speaker 04:
So there is no balance.

[00:22:02] Speaker 04:
Criminal speech, obviously, is subject to the restrictions.

[00:22:06] Speaker 04:
But core political speech, that is core political speech that's part of campaign speech, that raises the heck of a speech problem.

[00:22:12] Speaker 02:
I think that kind of labeling it core political speech begs the question,

[00:22:17] Speaker 02:
of whether it is in fact political speech or whether it is political speech aimed at derailing or corrupting the criminal justice process.

[00:22:28] Speaker 02:
You can't simply label it that and conclude your balancing test that way.

[00:22:33] Speaker 02:
We have to balance.

[00:22:35] Speaker 04:
Well, I think in the balance, the court should consider the fact that the issues at stake in the appeal are just absolutely inextricably and in the gag order itself, not just the appeal, inextricably entwined with the issues that are being publicly debated in the context of the council.

[00:22:48] Speaker 00:
You mentioned Brown a few times and the fact that that order was lifted in the run up to the election.

[00:22:54] Speaker 00:
What actually happened in that case is that the district court at the outset without any evidence, the only evidence was that there was general press attention to the case.

[00:23:04] Speaker 00:
and its Sue Espante entered a very broad gag order.

[00:23:07] Speaker 00:
It then lifted that in the run up to the election.

[00:23:10] Speaker 00:
But the defendants then started sharing recordings relevant to the case with the press, and the court stepped in and reimposed a limited form of the gag order.

[00:23:19] Speaker 00:
So my question is, why isn't the analogy here to that second, narrower gag order that the court entered in Brown?

[00:23:27] Speaker 00:
That's what happened here.

[00:23:28] Speaker 00:
The district court didn't act rationally.

[00:23:31] Speaker 00:
It waited back in August.

[00:23:33] Speaker 00:
It gave clear warnings to the parties not to make the type of statements that were at issue.

[00:23:38] Speaker 00:
That trend continued.

[00:23:39] Speaker 00:
And now we have an order that's targeted at the exact types of statements that have been occurring.

[00:23:44] Speaker 00:
So that's my question.

[00:23:45] Speaker 00:
In Brown, they did reimpose an order during the election.

[00:23:50] Speaker 04:
Yeah, looking at the facts at Brown, I believe it was other defendants, not the political candidate, who started leaking, you know, it was confidential transcripts of jury materials and giving interviews about them.

[00:23:59] Speaker 04:
The court reissued a gag order that basically said, don't release stuff you're getting through discovery that is otherwise confidential, which is totally different than the gag order we have here, right?

[00:24:08] Speaker 04:
This is not a situation, we haven't disputed in this case that additional court could say,

[00:24:12] Speaker 04:
Hey, you got an access to materials only through discovery.

[00:24:15] Speaker 04:
This is like the Seattle Times situation and therefore you can't release those to the public.

[00:24:19] Speaker 04:
So then Brown goes on to say that he was given complete latitude to actually defend himself in the political arena, which is the critical issue, which is one of the many critical issues at stake in this appeal.

[00:24:29] Speaker 04:
And it says it may well be the case that for the benefit of the electorate as well as himself, he has absolute freedom to discuss it.

[00:24:37] Speaker 04:
And keep in mind the electorate there was people voting for a Louisiana insurance commissioner.

[00:24:40] Speaker 04:
Here we're talking about every voter in the United States of America.

[00:24:43] Speaker 00:
I do want to get to questions about the scope of what he's able to say.

[00:24:46] Speaker 00:
But just briefly back to the evidence, you're certainly correct that most of the threats at issue, this pattern of statements followed by threats, is from 2020.

[00:24:56] Speaker 00:
But I think the link might be

[00:24:59] Speaker 00:
And I wonder what your response is that that was all about the same subject matter of this case.

[00:25:03] Speaker 00:
So essentially what the district court is finding is we have a past pattern when the defendant speaks on this subject, threats follow and now he's making similar statements again.

[00:25:13] Speaker 00:
We're months out from the trial.

[00:25:16] Speaker 00:
This is predictably going to intensify as well as the threats.

[00:25:20] Speaker 00:
And so why isn't the district court justified in taking a proactive measure, not waiting for more and more threats to actively occur and stepping in to protect the integrity of the trial?

[00:25:30] Speaker 04:
There's an evidentiary burden here.

[00:25:32] Speaker 04:
The evidence, actually, it isn't just that there's no evidence now, it's that the evidence we have now completely counteracts that inference, because it is undisputed that President Trump has been posting about this case almost incessantly since the day it was filed, and they haven't come forward with a sickle threat that's even arguably inspired by any of his social media posts.

[00:25:52] Speaker 04:
The only threat they talk about in their brief is from the Shry decision.

[00:25:54] Speaker 04:
from the Shry case from the Southern District of Texas.

[00:25:58] Speaker 00:
I strongly invite the court... Well, counsel, and a death threat to the district court judge in this case.

[00:26:02] Speaker 00:
Right.

[00:26:03] Speaker 04:
Abigail Jo Shry.

[00:26:04] Speaker 04:
That is the August 5th telephone call.

[00:26:06] Speaker 04:
If you pull, it's Southern District of Texas.

[00:26:08] Speaker 02:
The day after he said, if you come after me, I'm coming after you, that threat issued.

[00:26:13] Speaker 04:
I strongly encourage the court to pull both the probable cause statement and the detention order from that case, where there's evidence that

[00:26:21] Speaker 04:
that particular threatening.

[00:26:22] Speaker 04:
There's no evidence of any reading of social media.

[00:26:25] Speaker 04:
That particular threatening is a unemployed, you know, mentally unstable, heavy alcoholic who sits on her couch drinking beer all day, according to her father, never leaves the apartment, watches the news, not reads things on social media, watches the news on TV, gets angry about it and makes angry threatening calls.

[00:26:43] Speaker 00:
I'm sorry, counsel.

[00:26:43] Speaker 00:
This might've been partly my fault, but I just, I want to go back.

[00:26:46] Speaker 00:
Imagine all we had was the 2020 pattern.

[00:26:49] Speaker 00:
That evidence is very specific.

[00:26:51] Speaker 00:
It's about when the president speaks on this issue, events around January 6th, and that there are very specific threats that people receive.

[00:27:04] Speaker 00:
And again,

[00:27:05] Speaker 00:
that was a time where as you're saying the atmosphere was very tense as this trial approaches the atmosphere is going to be increasingly tense why does the district court have to wait and see and wait for the threats to come rather than taking a reasonable action in advance again the standard is imminently appending solidity of evidence we have an inference from stuff that happened three years ago

[00:27:26] Speaker 04:
count veiled, you know, contradicted by the evidence we actually have here, which is, I mean, they are saying, oh, it's an imminent threat that someone could be harassed.

[00:27:35] Speaker 03:
Let me ask you, Mr. Sauer, the conditions of release in this case prohibit your client from communicating about the facts of the case with any individual known to the defendant to be a witness, except through counsel or in the presence of counsel.

[00:27:52] Speaker 03:
Your client signed.

[00:27:54] Speaker 03:
Those conditions of release counsel before the district court was quite clear that that was not being challenged.

[00:28:03] Speaker 03:
How under your analysis would those conditions of release not be invalid?

[00:28:09] Speaker 03:
Are you taking a position that those conditions of release violate the First Amendment?

[00:28:13] Speaker 04:
No, we have never challenged the conditions of releasing and the president has complied with them.

[00:28:16] Speaker 03:
And how under your analysis

[00:28:19] Speaker 03:
would they not be unconstitutional?

[00:28:21] Speaker 04:
Well, a violation of that condition of release may be the response to Judge Millett's question from earlier.

[00:28:25] Speaker 03:
I was wondering about that.

[00:28:26] Speaker 04:
Whether that would be something, for example, that might not be criminal, but would be a clear and present danger to the administration.

[00:28:32] Speaker 02:
That would.

[00:28:32] Speaker 02:
I don't want mites.

[00:28:33] Speaker 02:
I'm really trying to understand your legal test.

[00:28:36] Speaker 02:
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,

[00:28:47] Speaker 02:
and speak with that person without counsel present, that would violate the restriction undoubtedly.

[00:28:55] Speaker 02:
Would the First Amendment protect that communication under your test?

[00:29:01] Speaker 02:
We have not contended that.

[00:29:02] Speaker 02:
It's not what I am asking.

[00:29:04] Speaker 02:
I'm asking you to apply the test that you propose us, because we have to write a test that can be applied.

[00:29:10] Speaker 02:
And we have to know how it's going to be applied.

[00:29:11] Speaker 02:
So I'm asking your position, your legal position,

[00:29:15] Speaker 02:
Would that phone call be protected by the First Amendment or not?

[00:29:21] Speaker 04:
Is it a phone call where what's said is happy Thanksgiving or is a phone call?

[00:29:24] Speaker 02:
I'm not telling you why, because the order, the pre-release, the release restriction doesn't care about the content.

[00:29:32] Speaker 02:
So he picks up the phone and calls a witness in direct violation of the terms of release.

[00:29:41] Speaker 04:
We do not contend that that would.

[00:29:44] Speaker 02:
I'm not contending.

[00:29:45] Speaker 02:
It would not.

[00:29:46] Speaker 02:
So that would not violate the First Amendment.

[00:29:48] Speaker 02:
That is allowed under the First Amendment.

[00:29:49] Speaker 02:
Yes, that's completely consistent with the positions we've taken in this case.

[00:29:51] Speaker 02:
And now the next hypothetical is he gets on the phone and he says, X, Ms.

[00:29:58] Speaker 02:
X, you've always been someone, a courage back phone, a loyalist, a patriot.

[00:30:04] Speaker 02:
And you know, loyalists and patriots don't talk.

[00:30:10] Speaker 02:
to prosecutors in my case and hangs up.

[00:30:14] Speaker 02:
Okay, if he said that.

[00:30:16] Speaker 04:
I think that would be a clear violation of the terms of release also unprotected by the person.

[00:30:19] Speaker 02:
Yes, okay.

[00:30:20] Speaker 02:
What if he instead gets on a stage somewhere or on social media and says that exact same thing?

[00:30:30] Speaker 02:
Ms.

[00:30:30] Speaker 02:
X, a public figure, is being bothered by the prosecutor.

[00:30:39] Speaker 02:
The people who are loyal, honest patriots don't talk to the government.

[00:30:49] Speaker 02:
He hasn't said that.

[00:30:52] Speaker 02:
Please answer the question.

[00:30:53] Speaker 02:
I'm not suggesting he has said that.

[00:30:55] Speaker 02:
To be clear for the record, this is a hypothetical question.

[00:31:03] Speaker 02:
Does punishing that conduct

[00:31:06] Speaker 02:
Because he's not speaking directly to the witness.

[00:31:08] Speaker 02:
He's doing this on social media, or at a town hall, or a news interview.

[00:31:13] Speaker 02:
He says that.

[00:31:16] Speaker 02:
Does it violate the First Amendment to say that's prohibited?

[00:31:23] Speaker 04:
If he's communicating with the American electorate about matters of public consequence?

[00:31:26] Speaker 02:
I've told you the facts.

[00:31:27] Speaker 02:
OK, so your answer is no.

[00:31:29] Speaker 04:
I've got to know more about the context of this statement.

[00:31:31] Speaker 02:
Oh, I've given you all the context you need to know.

[00:31:33] Speaker 02:
If he does it over the phone,

[00:31:37] Speaker 02:
to the prospective witness, you've said, First Amendment prohibits it.

[00:31:43] Speaker 02:
If he says it with a megaphone, knowing that witness is in the audience.

[00:31:49] Speaker 04:
Then you're very likely in the same scenario.

[00:31:52] Speaker 02:
Okay.

[00:31:53] Speaker 02:
But if he does it on social media, knowing that person's a social media follower of his,

[00:31:59] Speaker 04:
Again, I think you're getting further afield and more into core political speech.

[00:32:01] Speaker 03:
But doesn't that have to be your answer?

[00:32:03] Speaker 03:
I mean, Legion are the cases that you have to agree as you did with Judge Millett.

[00:32:11] Speaker 03:
Legion are the cases that say there's no right of a criminal defendant to try his case in the media.

[00:32:17] Speaker 03:
That's what the court is for.

[00:32:19] Speaker 03:
And of course, what's difficult about this case is that there is some substantive overlap between what the defendant wants to do in campaigning

[00:32:28] Speaker 03:
and what the prosecution here is doing in the case.

[00:32:34] Speaker 03:
But to the extent that there's an ability to distinguish between trying this case in the media and running for president, clearly he has no entitlement to do publicly.

[00:32:45] Speaker 03:
what is well established, he could not do one-on-one to that witness.

[00:32:50] Speaker 04:
I would say two things in response to that.

[00:32:51] Speaker 04:
One is that there's not mere sum overlap.

[00:32:54] Speaker 04:
There's near complete overlap between the issues in the case and the issues in the political campaign.

[00:32:58] Speaker 04:
Secondly, the statements in the caseloads says you can't try your case in the media are all about cases that involve

[00:33:05] Speaker 04:
influence on the jury pool.

[00:33:07] Speaker 04:
And we don't have that rationale in this case because the district court expressly rejected that.

[00:33:10] Speaker 03:
You said that there's a complete overlap.

[00:33:13] Speaker 03:
But what about the proportions of the order that cover, let's say, the court's administrative staff?

[00:33:22] Speaker 03:
There would be no reason to campaign on any of that.

[00:33:26] Speaker 04:
That was drawn, there was no evidence presented on that issue at all.

[00:33:29] Speaker 04:
He's never made a statement about court staff here.

[00:33:31] Speaker 04:
That was drawn from the New York situation that we briefed, where it was court political speech.

[00:33:35] Speaker 04:
That illustrates the hazards here.

[00:33:37] Speaker 04:
There was no evidence on that particular case before the district judge.

[00:33:40] Speaker 04:
Apparently, it was relying on, you know, Sue Espante reviewing of media reports, when in fact, the statements about the principal law clerk in the pending New York civil trial were absolutely court political speech.

[00:33:51] Speaker 04:
They definitely violated the First Amendment.

[00:33:53] Speaker 03:
I'm talking about in this case, though, where there's an effort prophylactically to protect court staff.

[00:34:01] Speaker 03:
And my premise is, or my question for you, is when you say there's complete overlap, it seems that that's an easy case where there actually isn't overlap.

[00:34:10] Speaker 03:
That individuals who are working for the judge assigned to this case would be no topic, no topic in a campaign other than an effort

[00:34:21] Speaker 03:
to undermine this case qua case.

[00:34:24] Speaker 04:
I would say a couple of things.

[00:34:26] Speaker 04:
We're talking hypothetical.

[00:34:27] Speaker 04:
The president has never made a statement relating to this case about any court staffer that I'm aware of.

[00:34:32] Speaker 03:
But the order, as you well know and as you've challenged, the order applies to court staff.

[00:34:37] Speaker 04:
With no evidence to support it.

[00:34:39] Speaker 03:
I appreciate that aspect of it.

[00:34:41] Speaker 03:
I appreciate that aspect of it, that you've made a point about whether there's evidence or not.

[00:34:46] Speaker 03:
But I'm talking about the claimed overlap between political speech and the speech that's restricted by the order.

[00:34:55] Speaker 03:
And I'm positing that there actually is speech restricted by the order that would not be campaign speech but for this case.

[00:35:02] Speaker 03:
And surely you can see that.

[00:35:04] Speaker 03:
I think the New York decision shows exactly the opposite.

[00:35:07] Speaker 03:
We're not talking about those circumstances.

[00:35:09] Speaker 03:
If there were

[00:35:10] Speaker 03:
a staffer of the judge about whom it became clear that there was some political bias.

[00:35:19] Speaker 03:
Nobody disputes that the defendant's team could and would file a motion with the judge to raise a concern about that and comment on how the judge ruled on that.

[00:35:29] Speaker 03:
But that's not where we are.

[00:35:31] Speaker 03:
We're in a situation of prophylactics, and that's really what I'm asking you about, of prophylactic situations.

[00:35:37] Speaker 03:
where nobody who works for the court, these are career people.

[00:35:43] Speaker 03:
Nobody volunteered for this assignment.

[00:35:46] Speaker 03:
None of them have life tenure.

[00:35:48] Speaker 03:
They're just trying to do their jobs.

[00:35:50] Speaker 03:
Nothing about them would be campaign speech in the absence of a case.

[00:35:56] Speaker 04:
But what we see in New York is that if you enter that prophylaxis now based on New York.

[00:35:59] Speaker 04:
We're not in New York.

[00:36:01] Speaker 04:
If you enter that prophylaxis now, based on zero evidence, no evidence at all, no evidence of what the political bias might be as of the court staffers, and no evidence of any statement about any of these court staffers, and if it later turns out that there's an extremely biased court staffer, we have a huge First Amendment problem.

[00:36:18] Speaker 03:
We have a prior restraint based on no evidence which is what this is.

[00:36:21] Speaker 03:
Let me ask you then, in a different way.

[00:36:24] Speaker 03:
Let's say that kind of situation arose here.

[00:36:27] Speaker 03:
and the order remains in place and is valid.

[00:36:31] Speaker 03:
So the defendant is in jeopardy of violating the order by tweeting about it.

[00:36:36] Speaker 03:
Nothing will prevent the legal team in that situation from filing an emergency motion with the court, coming up to the emergency panel of this court and saying, there's bias here.

[00:36:48] Speaker 03:
And presumably, once that's filed in the court, nothing would prevent

[00:36:56] Speaker 03:
the defendant from complaining about the way it's ruled on.

[00:37:00] Speaker 04:
That flips the First Amendment on its head.

[00:37:02] Speaker 04:
The burden is on them.

[00:37:03] Speaker 03:
I'm just saying there is a protection there.

[00:37:05] Speaker 04:
There would be potentially the additional running on emergency motions.

[00:37:08] Speaker 04:
Keep in mind what its black letter law at the Supreme Court said in Elrod against Burns, which is that denial of First Amendment freedoms even for minimal periods of time

[00:37:19] Speaker 04:
is black letter irreparable injury.

[00:37:21] Speaker 04:
So even injecting that delay, that procedural delay, keep in mind, we're talking about a prior restraint that is, I think everyone can just based on no evidence at all.

[00:37:29] Speaker 04:
But in fact, if it were to become relevant, there could be compelling First Amendment interest in calling public attention to the alleged bias of the court staffer, which is what we see in New York, a gag order that is now state.

[00:37:39] Speaker 03:
There's no precedent that I'm aware of that requires evidence of tampering with witnesses

[00:37:47] Speaker 03:
before a prophylactic order can be put in place to protect tampering with witnesses.

[00:37:53] Speaker 03:
Am I wrong about that?

[00:37:54] Speaker 04:
I think the case law says you have to have an imminently appending threat to the administration of justice.

[00:37:58] Speaker 03:
About witnesses?

[00:37:59] Speaker 04:
Witness communicating with witnesses?

[00:38:01] Speaker 04:
Yeah, but that's the general standard for all those.

[00:38:03] Speaker 04:
Now, you mean for the defendant to directly communicate with a witness.

[00:38:06] Speaker 04:
That again, I think, goes with that.

[00:38:07] Speaker 03:
Or saying publicly threatening things about witnesses.

[00:38:10] Speaker 03:
I think, what do you mean by threatening?

[00:38:12] Speaker 03:
Because the First Amendment has a clear test of... Something that falls short of true threat, because we wouldn't be here if that's the only thing that we're protecting against.

[00:38:19] Speaker 04:
In the context of a political campaign, what is described as a threat here is core political speech.

[00:38:25] Speaker 04:
I can't emphasize that enough.

[00:38:26] Speaker 04:
So the hypothetical is saying, well, what if he makes a threatening statement?

[00:38:31] Speaker 04:
What they've described as threats is actually, under the Supreme Court's jurisprudence, core political speech.

[00:38:37] Speaker 04:
It is rough and tumble.

[00:38:38] Speaker 04:
Uh, but it is hard hitting in many situations, but it absolutely is core political speech and all the examples they provided.

[00:38:45] Speaker 04:
It's directed at public figures from the highest echelons of government, former vice president, former attorney general, former chairman of the joint chiefs of staff who used to command the entire United States military.

[00:38:54] Speaker 04:
And the argument is that it's going to influence their testimony.

[00:38:56] Speaker 04:
That's a, it's just not a, not a compelling.

[00:38:59] Speaker 02:
The release condition says defendant shall not communicate with witnesses.

[00:39:04] Speaker 02:
You keep talking about directly communicate.

[00:39:07] Speaker 02:
So is it your position that if he communicates through a social media post, hey, Witness X, I know the prosecutor's bothering you, trying to get you to say bad things about me.

[00:39:25] Speaker 02:
Be a patriot.

[00:39:27] Speaker 02:
Don't act treasonously.

[00:39:31] Speaker 02:
Don't cooperate.

[00:39:32] Speaker 02:
I am not.

[00:39:34] Speaker 02:
It is really, I'm sorry, but I really want an answer to your understanding of the release conditions.

[00:39:40] Speaker 02:
This is, for the record, a hypothetical question.

[00:39:44] Speaker 02:
It, to my knowledge, hasn't happened.

[00:39:45] Speaker 02:
Apparently, to your knowledge, hasn't happened.

[00:39:47] Speaker 02:
Not even saying it would happen.

[00:39:49] Speaker 02:
I want to understand how you, because you have said no First Amendment problem with the release condition.

[00:39:57] Speaker 02:
Okay, so I've asked you that question.

[00:40:00] Speaker 02:
Does that communication

[00:40:03] Speaker 02:
violate the release condition?

[00:40:06] Speaker 04:
A social media post that is a direct communication to a witness could well violate it.

[00:40:12] Speaker 04:
We would have to know more about the context.

[00:40:13] Speaker 02:
No, no.

[00:40:14] Speaker 02:
I've given you exactly the content of the communication.

[00:40:17] Speaker 02:
I don't know what more you want.

[00:40:19] Speaker 02:
I've given you the text.

[00:40:20] Speaker 02:
And so that's what comes into the court.

[00:40:22] Speaker 02:
Is that a violation?

[00:40:23] Speaker 02:
That very well might be.

[00:40:24] Speaker 02:
So when you say indirect communicate, because you keep saying direct communications as opposed to, I assume, indirect.

[00:40:32] Speaker 02:
What indirect communications with witnesses are allowed in here?

[00:40:37] Speaker 04:
If there's a hypothetical, for example, that was raised earlier where he's at a town hall speaking to the entire American public, televised, and says something that's core political speech to say, oh, that's an issue to the witness.

[00:40:48] Speaker 02:
If he says the exact same thing, hey, I know Witness X is out there, and this is exactly what I said.

[00:40:59] Speaker 04:
What I would do is put that in the framework of the comments about Vice President Pence.

[00:41:04] Speaker 02:
No, no, no, no.

[00:41:04] Speaker 02:
Don't put it in any other framework.

[00:41:05] Speaker 02:
Just tell me, does that violate the release conditions?

[00:41:10] Speaker 04:
Before I answer that question, I would like to make the point that the context may result in a different answer to that question.

[00:41:15] Speaker 04:
As you've described it, that could well be a violation of release conditions, but the context is absolutely critical.

[00:41:20] Speaker 04:
In many of these cases, look at the post about Vice President Pence.

[00:41:23] Speaker 04:
They say, oh, look, he's commenting on Vice President Pence's testimony.

[00:41:26] Speaker 04:
What actually happened there is on August 1st, the indictment is released with a statement about two on it.

[00:41:30] Speaker 02:
That's not my hypothetical.

[00:41:31] Speaker 02:
My hypothetical was quite clearly about cooperating with the prosecutor or not.

[00:41:36] Speaker 04:
I think the real world

[00:41:38] Speaker 04:
course of communication relating to Vice President Pence illustrates my response that we must know the context.

[00:41:44] Speaker 02:
What more context do you want for my hypothetical?

[00:41:46] Speaker 02:
Well, for example, look at Vice President Pence.

[00:41:48] Speaker 02:
No, no, no.

[00:41:49] Speaker 02:
Tell me what fact you need to know for my hypothetical.

[00:41:53] Speaker 02:
Pay witness X. I know you're listening.

[00:41:57] Speaker 02:
And then talks about prosecutors been bothering you, anyone who's faithful, loyal,

[00:42:04] Speaker 02:
won't work with this prosecutor who's out to get me, doing so lying, that would be like almost like treason.

[00:42:11] Speaker 02:
What if Witness X is just... I am... Wait, so what more facts do you need?

[00:42:15] Speaker 04:
Well, what if that is a fair response to something that Witness X has said in the political arena?

[00:42:20] Speaker 02:
I'm asking you whether it's... I'm not asking whether fair or not.

[00:42:23] Speaker 02:
I don't see anything in the release condition that says only unfair communications are prohibited.

[00:42:28] Speaker 02:
Is that a communication?

[00:42:30] Speaker 02:
to a witness.

[00:42:31] Speaker 02:
And I think I've already stated that it could well be.

[00:42:33] Speaker 02:
Could well be?

[00:42:34] Speaker 02:
It is a risk.

[00:42:35] Speaker 02:
Well, again, it could well be.

[00:42:37] Speaker 02:
There's another fact you need to know to tell me that it is a communication with a witness.

[00:42:41] Speaker 02:
What would that fact be?

[00:42:42] Speaker 04:
Well, for example, if it is a statement being made in a political arena that is not directed at the public as a whole.

[00:42:49] Speaker 02:
It's a political arena.

[00:42:50] Speaker 02:
I've just said, it's a political arena.

[00:42:51] Speaker 02:
It's either a social media post or he's standing in the town hall.

[00:42:56] Speaker 02:
So it's in a political arena.

[00:42:58] Speaker 04:
And I think my answer is, I just don't know how to answer it differently.

[00:43:01] Speaker 04:
It could well violate it.

[00:43:02] Speaker 04:
It seems like the way you've described it, that that would be a violation.

[00:43:05] Speaker 04:
But with the caveat, there could be additional facts that would lead to a different conclusion.

[00:43:10] Speaker 02:
So just because I've been struggling to try to understand what your test captures.

[00:43:18] Speaker 02:
And so in addition to criminal law violations, it captures, is messaging to at least known

[00:43:28] Speaker 02:
perspective witnesses about cooperation.

[00:43:33] Speaker 02:
It could well do so.

[00:43:34] Speaker 02:
Again, it would depend.

[00:43:35] Speaker 02:
And so the First Amendment would allow.

[00:43:39] Speaker 02:
You'd have arguments on both sides.

[00:43:42] Speaker 02:
But the First Amendment, if the district court concluded factually that that were a communication with a witness without counsel present,

[00:43:54] Speaker 02:
Then that First Amendment would allow punishment of that.

[00:43:56] Speaker 04:
If there was evidence supporting that finding and the finding was made that there was a violation of the conditions of release.

[00:44:04] Speaker 02:
The evidence is going to be the tweet or the recording of the town hall meeting, would it?

[00:44:07] Speaker 04:
We've never disputed that.

[00:44:09] Speaker 04:
We've never disputed that.

[00:44:10] Speaker 04:
Now, what I resist doing is trying to try this case based on hypotheticals when the standard is let's look at the evidence.

[00:44:16] Speaker 04:
Because the evidence we have.

[00:44:17] Speaker 02:
No one's trying a case based on hypotheticals.

[00:44:19] Speaker 02:
We are testing.

[00:44:22] Speaker 02:
the legal rule that you wish us to adopt.

[00:44:24] Speaker 02:
Because again, as the Supreme Court has, I know you have embraced the Nebraska test and made very good arguments about that and about the importance of political speech here.

[00:44:33] Speaker 02:
You've made very, very important points about that.

[00:44:37] Speaker 02:
But the Supreme Court has said that's not a technical metric to be applied, clear and present danger.

[00:44:43] Speaker 02:
It bespeaks a balancing test.

[00:44:46] Speaker 02:
And so what I've been struggling with with this argument is to understand what in your test

[00:44:51] Speaker 02:
balances the legitimate constitutionally important values of protecting the criminal trial process.

[00:45:03] Speaker 02:
And so it sounds like at least if he's talking about prospective witnesses, there may be some room there between what would be illegal and what could constitutionally be proscribed through

[00:45:20] Speaker 02:
an order of the court.

[00:45:22] Speaker 04:
I think I agree with that as you framed it.

[00:45:25] Speaker 04:
And I would say two further things.

[00:45:26] Speaker 04:
One is I direct the court's attention to the Heckler's veto cases.

[00:45:30] Speaker 04:
Heckler's veto rationales have uniformly been treated as basically categorically invalid.

[00:45:35] Speaker 04:
So whatever room there is there when dealing with the Heckler's veto rationale is vanishingly small.

[00:45:42] Speaker 02:
There's also another rule in the law that people can be assumed to intend the known and probable consequences of their actions.

[00:45:53] Speaker 02:
That's a pretty settled rule of law as well.

[00:45:58] Speaker 02:
And a district court trying to protect the integrity and fair administration of the criminal process

[00:46:10] Speaker 02:
Could they consider that well-established rule?

[00:46:14] Speaker 04:
Not under Heckler's veto theory.

[00:46:16] Speaker 02:
They're not putting it under a theory.

[00:46:19] Speaker 02:
What I'm saying is, could they, if hypothetically, this hasn't happened, this is a hypothetical, a statement were made by another criminal defendant who's running for some low-level office, and made a statement

[00:46:42] Speaker 02:
that caused and causing harm to that inspired some third person to engage in harm.

[00:46:51] Speaker 02:
And it were shown to be a hard showing to make that the speaker was aware of that there were known and probable consequences

[00:47:03] Speaker 02:
of this violent action ensuing from, you're already shaking your head no.

[00:47:07] Speaker 04:
My answer is going to be no.

[00:47:08] Speaker 04:
I think that was decades of Supreme Court's Cate law, heckler's veto.

[00:47:12] Speaker 04:
Because the notion that, oh, you knew this was going to happen could be made in every single heckler's veto case.

[00:47:17] Speaker 04:
Oh, you knew when you gave a speech about, you knew when you marched through Illinois dressed in your crazy outfits.

[00:47:22] Speaker 02:
You're balancing, those cases didn't involve balancing.

[00:47:26] Speaker 02:
against another constitutional interest in preserving the integrity of the criminal justice process.

[00:47:33] Speaker 02:
And so that's where my question is coming from.

[00:47:37] Speaker 02:
Yeah, in most cases, but they didn't involve the balance.

[00:47:40] Speaker 02:
You agree we have to balance, right?

[00:47:43] Speaker 02:
The Supreme Court has said this is a, even your clear and present danger test is a balancing test.

[00:47:47] Speaker 02:
Do you agree with that?

[00:47:48] Speaker 04:
I don't view strict scrutiny as a balancing test.

[00:47:51] Speaker 02:
We've argued that it's either per se valid or- The Supreme Court has said,

[00:47:55] Speaker 02:
in straight up terms that clear and present danger is in fact not a technical rubric, but in fact is simply a balancing test.

[00:48:03] Speaker 02:
That's what the Supreme Court has said, so we're bound by it whether you agree or not.

[00:48:06] Speaker 02:
But I assume you agree there's a balance here that doesn't exist in the normal First Amendment context.

[00:48:11] Speaker 04:
I don't dispute that there is a balancing to be done, but to me, the term balance suggests a kind of looseness in the legal standards that apply, and we disagree with that categorically.

[00:48:22] Speaker 04:
There is the strictest of standards.

[00:48:23] Speaker 04:
Strict scrutiny is a balancing test.

[00:48:25] Speaker 04:
I don't describe it as such, and maybe that's why there's less communication.

[00:48:28] Speaker 02:
We are balancing competing.

[00:48:30] Speaker 02:
The Supreme Court has told us, whether you agree or not, so I'm hoping you will agree, because the Supreme Court precedent is quite clear, that whether you formulate it as clear or present danger or otherwise,

[00:48:39] Speaker 02:
the First Amendment area, we're in a balancing test here.

[00:48:42] Speaker 02:
And so we are balancing, and particularly in these cases involving criminal process and free speech.

[00:48:47] Speaker 02:
They've said time and again, it's a balancing test.

[00:48:50] Speaker 02:
Now that doesn't mean it's 50-50, right?

[00:48:52] Speaker 02:
Your position, of course, is that this isn't a 50-50 balancing.

[00:48:57] Speaker 02:
There's already a lot of weight on the First Amendment side, right?

[00:49:02] Speaker 02:
So understood.

[00:49:03] Speaker 04:
I don't dispute the court's use of the phrase.

[00:49:05] Speaker 04:
balancing at all, but with the caveat that we have argued that under the Heckler's veto standard, it is per se invalid.

[00:49:11] Speaker 04:
All the cases they've relied on are not Heckler's veto cases.

[00:49:14] Speaker 04:
And that is really what the Supreme Court says, because if you engage in any scrutiny at all in a Heckler's veto context, you're going to end up being able to shut down every speaker who ever speaks, and that's...

[00:49:25] Speaker 02:
If we had different, I'm not shutting down everyone who speaks.

[00:49:30] Speaker 02:
We're only, this does only affect, no one's shutting down and everyone's, this is only affecting speech temporarily during a criminal trial process by someone who has been indicted as a felon.

[00:49:40] Speaker 02:
So that's a different category first.

[00:49:42] Speaker 02:
So no one here is threatening the First Amendment broadly.

[00:49:45] Speaker 02:
But secondly, if we had hypothetically a completely different criminal defendant,

[00:49:53] Speaker 02:
who is running for, say, what's that, a statewide office, pretty important.

[00:49:57] Speaker 02:
Statewide office.

[00:49:59] Speaker 02:
And this person, hypothetical facts not before us, engages in political speech, decrying the process, the criminal process, insulting, berating, and calling terrible names of the prosecutor and the prosecutor's family.

[00:50:23] Speaker 02:
and starts posting the address where they live.

[00:50:29] Speaker 02:
And every time this campaigner does that, someone in his audience goes and tries to execute violence against the prosecutor or family members.

[00:50:44] Speaker 02:
That is not this case.

[00:50:46] Speaker 02:
But if that happened, if there were a repeated pattern of it happening,

[00:50:54] Speaker 02:
How would that fit into your balance?

[00:50:55] Speaker 04:
I think the first half of your hypothetical is exactly like the case against Congressman Ford, where he was allowed to say the prosecution against me is racist.

[00:51:02] Speaker 04:
I'm being persecuted by the Reagan administration.

[00:51:04] Speaker 02:
The first half, but of course, the second half was really important.

[00:51:06] Speaker 02:
And that is that there's a repeated pattern.

[00:51:12] Speaker 02:
And so I'm not asking for a case citation here.

[00:51:15] Speaker 02:
You've done an excellent job in your briefing to give us really important, relevant cases.

[00:51:19] Speaker 02:
What I'm asking for is,

[00:51:22] Speaker 02:
In that hypothetical, if there's a repeated pattern in the balancing test, one could the district court factor that repeated pattern of conduct by third parties responding to speech?

[00:51:37] Speaker 04:
Not if that pattern was three years old.

[00:51:38] Speaker 04:
God, it's not my question.

[00:51:40] Speaker 02:
No, no, no, no.

[00:51:43] Speaker 02:
If it's immediate.

[00:51:45] Speaker 04:
In other words, if you have a criminal defendant who's posting street addresses, home addresses of, you know, whoever it is, witnesses and trial participants, and there's a repeated pattern of acts of violence against them, you know, I'd have to know more.

[00:51:59] Speaker 04:
I'm qualifying what I say was saying I'd have to know more about the facts of that case, but I could certainly see a situation where that would be justified.

[00:52:05] Speaker 04:
I'm not saying that it can never, ever be justified with the exception that the heckler's veto rationale.

[00:52:11] Speaker 02:
Well, that is a heckler's veto.

[00:52:13] Speaker 02:
It's how third parties respond.

[00:52:14] Speaker 02:
to the speech.

[00:52:15] Speaker 02:
It is definitely, I think, what you are calling a heckler's veto.

[00:52:18] Speaker 02:
But I'm combining that with either intent or at least knowledge or recklessness on the part of the political speaker as to the entirely foreseeable and repeated pattern of consequences from that speech.

[00:52:34] Speaker 04:
I think my response to that is that the so-called state of mind of the speaker is irrelevant in the heckler's veto context.

[00:52:42] Speaker 04:
And we have no evidence of an improper state of mind here.

[00:52:45] Speaker 04:
We have an argument from a district judge and I do keep returning to the facts in this case because the facts here don't come anywhere close to justifying this gag order.

[00:52:54] Speaker 04:
I don't know if I know I've gone way over my time.

[00:52:56] Speaker 02:
That's okay.

[00:52:56] Speaker 02:
I think as long as we have questions, if you don't mind, if you go ahead, I want to make sure we hear from you on the vagueness argument.

[00:53:02] Speaker 00:
So it's a little bit separate from what we've been talking about so far.

[00:53:06] Speaker 00:
But I think the question to you, just to step back, you know, the district court is concerned about witness intimidation.

[00:53:13] Speaker 00:
It also,

[00:53:15] Speaker 00:
worked hard to give some leeway to the First Amendment values.

[00:53:17] Speaker 00:
And so the order it entered is narrower than what the government wanted.

[00:53:22] Speaker 00:
There's a significant carve out.

[00:53:23] Speaker 00:
And it certainly gives rise to close edge cases.

[00:53:27] Speaker 00:
But I think the question to you is, with the two orders, with all the examples in the transcript,

[00:53:33] Speaker 00:
What is something that you're genuinely unsure whether Mr. Trump can say under this order?

[00:53:39] Speaker 00:
What's your sort of best concrete example of that?

[00:53:41] Speaker 04:
Half of the social media posts in the record.

[00:53:43] Speaker 04:
I mean, you go through them, you're like, is this general or is it targeting?

[00:53:46] Speaker 04:
I mean, from the perspective of a lawyer who has to counsel clients, you're in a, you're steering, because it's so vague, you're steering straight towards the shoals of chilling more speech than is intended.

[00:53:56] Speaker 00:
So I appreciate that general point.

[00:53:58] Speaker 00:
The district court,

[00:53:58] Speaker 00:
took a lot of care in an extensive hearing to go through a lot of examples and references those in the order denying the stay.

[00:54:06] Speaker 00:
So what I would love to hear is if there's one, you know, particular example of those posts that you don't think has been resolved.

[00:54:15] Speaker 04:
Yeah, I think there's, for example, there's one social media post in the record that doesn't mention the special counsel by name, but refers to the Department of Injustice being run by crooked Joe Biden, who are, you know, railroading, I don't remember the exact words of it, but railroading the

[00:54:28] Speaker 04:
for political reasons.

[00:54:29] Speaker 04:
Is that targeting the special counsel or is that a general statement?

[00:54:33] Speaker 00:
It seems to me that's exactly what the district court was saying was allowed.

[00:54:38] Speaker 00:
Statements about the Department of Justice and President Biden.

[00:54:41] Speaker 00:
That's sort of the literal words of the carve out.

[00:54:43] Speaker 00:
So I would think maybe that's a question for the government, but I'm pretty sure that's common ground that that's allowed.

[00:54:47] Speaker 04:
I think that I would refer the court to the actual social media post.

[00:54:51] Speaker 04:
When I read that, I'm like, what would I tell a client?

[00:54:54] Speaker 04:
Can you do this or can't you do this?

[00:54:55] Speaker 04:
That's the chilling effect.

[00:54:56] Speaker 04:
And I would emphasize to the court the standard in genteel.

[00:55:00] Speaker 04:
Genteel, the governing opinion on the vagueness issue is section three of Justice Kennedy's opinion.

[00:55:04] Speaker 04:
That's the opinion of the court.

[00:55:06] Speaker 04:
What does it hold?

[00:55:07] Speaker 04:
It holds that the state bar of Nevada had a rule that says you can make a general denial of your client's guilt, but you cannot elaborate.

[00:55:15] Speaker 04:
And Justice Kennedy says this is unconstitutionally vague.

[00:55:18] Speaker 04:
You know, its contours are unclear.

[00:55:20] Speaker 04:
And a lawyer cannot know when you go from the safe harbor of the general to the forbidden sea of the elaborated.

[00:55:28] Speaker 04:
And here we have gentleman confidence exactly on point.

[00:55:31] Speaker 00:
I appreciate that argument.

[00:55:32] Speaker 00:
I think one big distinction is that

[00:55:35] Speaker 00:
In genteel, it was a generally applicable rule.

[00:55:40] Speaker 00:
Here, we have an order that's informed by the transcript and all of the examples that were given.

[00:55:45] Speaker 00:
And it does seem like the core of what's allowed and what's not is fairly clear.

[00:55:50] Speaker 00:
So just for example, I think this is page 201 of the appendix.

[00:55:54] Speaker 00:
Your co-counsel says that Mr. Trump should be able to say, a joint chief of staff should not engage in that kind of conduct, referring to Milley.

[00:56:04] Speaker 00:
And the court says, yes, he's allowed to make that type of statement.

[00:56:07] Speaker 00:
What he can't do is go on and say, that type of conduct should be punishable by death.

[00:56:12] Speaker 00:
And so it's not sort of a completely abstract distinction.

[00:56:16] Speaker 00:
It's whether there's a suggestion of a threat.

[00:56:19] Speaker 04:
I think what you said powerfully illustrates the vagueness.

[00:56:22] Speaker 04:
Because if their position is there's two statements about General Milley, one is OK and the other is not OK.

[00:56:29] Speaker 04:
I don't know how, as an attorney who has to counsel a client to comply with the law, how you would say, oh, that first one is not targeting him.

[00:56:36] Speaker 04:
It's critical of him.

[00:56:37] Speaker 04:
The missionary definition of target that we cited, that would be targeting.

[00:56:41] Speaker 04:
And the argument is, well, we're not going to count that one because the First Amendment interests are obviously clear.

[00:56:44] Speaker 00:
You see, what my concern is, though, it's not about the abstract meaning.

[00:56:48] Speaker 00:
We're not asking whether an ordinary person in the public can understand what targeting means.

[00:56:52] Speaker 00:
We're asking whether the parties who are all represented at this hearing can understand.

[00:56:57] Speaker 00:
And so we have that statement, right?

[00:57:00] Speaker 00:
And then the government makes similar examples on page 40 of their brief that allowed, not allowed.

[00:57:06] Speaker 00:
And I'm just trying to ask, which ones?

[00:57:09] Speaker 04:
I think, I would cite to the court to address this, the granite standard.

[00:57:14] Speaker 04:
The granite standard is you can have a situation where there'd be ad hoc or subjective application of the standard.

[00:57:20] Speaker 04:
So we have an order that says don't target, right?

[00:57:23] Speaker 04:
Don't target prosecutors, witnesses, court staff.

[00:57:25] Speaker 04:
And then the prosecution comes in and says, actually, it'd be okay to make a public statement criticizing someone who's a potential witness they contend.

[00:57:33] Speaker 04:
And that wouldn't be targeting.

[00:57:34] Speaker 04:
At that point, from the defense perspective, it's like, what does target mean?

[00:57:39] Speaker 03:
We haven't answered to that.

[00:57:40] Speaker 03:
Go ahead.

[00:57:41] Speaker 03:
I appreciate that concern about targeting.

[00:57:43] Speaker 03:
So is it clearer or less clear if the order were to say that what's prohibited is comment on any reasonably foreseeable witness

[00:57:53] Speaker 03:
because of the witnesses' potential participation in the trial.

[00:57:59] Speaker 03:
And let me just give you a little bit of context of my thinking on that, which is there are a lot of people who are out in the public and with whom

[00:58:10] Speaker 03:
The defendant has a history and he has reason apart from the trial that he might want to comment on them.

[00:58:18] Speaker 03:
There is also a whole category of witnesses with whom there is no, you know, who are not public figures.

[00:58:26] Speaker 03:
and where the reason that he might be tempted to comment on them in the campaign is because they're potential witnesses.

[00:58:34] Speaker 03:
And that's really at the core of the interest in an impartial trial.

[00:58:41] Speaker 03:
So does that add clarity to say that you can only make comments on potential witnesses but not because of

[00:58:49] Speaker 03:
their potential role as witnesses.

[00:58:52] Speaker 04:
I think sort of a standard.

[00:58:53] Speaker 04:
I think because of would sort of wrap into that standard subjective motivation of the speaker.

[00:58:58] Speaker 04:
And I think that would be an equally bad.

[00:59:00] Speaker 04:
It's a different vagueness problem, but it's equally bad.

[00:59:02] Speaker 04:
Using the word comment instead of target, that might be clearer.

[00:59:06] Speaker 04:
I'd have to look that up in the dictionary to have a clearer answer, which is what we did here for target.

[00:59:09] Speaker 03:
What's doing the work of targeting is the because of, which I think is narrower than targeting.

[00:59:15] Speaker 03:
Because it's both targeting and then linking it

[00:59:19] Speaker 03:
to the interest, which is the trial and protecting the trial.

[00:59:23] Speaker 03:
And it also, I think, organically distinguishes between the public figures where there would be more reasons that they would be fair game and the non-public figures who also at the same time might be more vulnerable to intimidation.

[00:59:38] Speaker 04:
If there were an order that used because of, then I think that would be naturally interpreted to turn the violation on the subjective motivation and making the post

[00:59:46] Speaker 04:
I think that would be all kinds of grainhead problems.

[00:59:50] Speaker 03:
I'm not so sure, although I think if I were in your position, I would embrace an intent standard.

[00:59:56] Speaker 03:
But I don't see this as an intent standard.

[00:59:58] Speaker 03:
I see this as more of a nexus.

[01:00:02] Speaker 03:
And it would have to be assessed.

[01:00:04] Speaker 04:
Again, I think that would trade one vagueness problem for another.

[01:00:07] Speaker 03:
And be worse or less unclear?

[01:00:09] Speaker 03:
I don't know.

[01:00:09] Speaker 04:
I think they both seem fatal.

[01:00:11] Speaker 04:
So I think it's equally bad.

[01:00:13] Speaker 02:
Equally bad, OK.

[01:00:17] Speaker 02:
The day after the indictment, the defendant found out on social media, quote, if you go after me, I'm coming after you.

[01:00:30] Speaker 02:
Can you say that's protected speech?

[01:00:32] Speaker 02:
Absolutely.

[01:00:33] Speaker 02:
If he had said that right outside the courthouse to the phalanx of cameras, so he's speaking to the public, same answer?

[01:00:40] Speaker 02:
I think so.

[01:00:41] Speaker 02:
If he posted it with a picture of the district court judge in the corner,

[01:00:45] Speaker 04:
Again, we'd be getting into, you know, I'd have to have the context of that.

[01:00:50] Speaker 02:
I've given you the context.

[01:00:51] Speaker 02:
It's the same identical social media post, but adds a picture of the district court judge in the corner.

[01:00:57] Speaker 04:
I'd have to look at case law.

[01:00:58] Speaker 04:
That would be more problematic for sure.

[01:01:00] Speaker 04:
Why?

[01:01:01] Speaker 04:
Well, I think because then in the context of the same, at least the context that you've added in a hypothetical that, again, is not present in the courthouse here, there would be a situation where, in argument, if you may, that that's some kind of threat to the district judge, which, if it were, it rose to the level of true threats.

[01:01:15] Speaker 04:
If I haven't read the case law, I cannot make a legal determination as I stand at the podium.

[01:01:18] Speaker 04:
But if it rose to that level, that would definitely not be protected by the First Amendment.

[01:01:22] Speaker 04:
Yet a similar threat in one of the cases.

[01:01:23] Speaker 02:
So the same words.

[01:01:27] Speaker 02:
There are words that can be said that

[01:01:31] Speaker 02:
Adding a picture will take them outside.

[01:01:35] Speaker 04:
And again, I don't see that that would, but I'm saying it's getting closer.

[01:01:39] Speaker 04:
For example, in the Manafort decision, there was a posting of a picture of the district judge with crosshairs, I think, next to the district judge's head.

[01:01:46] Speaker 04:
There, you're outside the First Amendment almost certainly.

[01:01:49] Speaker 02:
We don't have to wait.

[01:01:50] Speaker 04:
Almost certainly?

[01:01:51] Speaker 04:
Would you say certainly?

[01:01:53] Speaker 04:
I haven't read the True Threats case law, but I bet that statements like that would qualify as true threats.

[01:01:58] Speaker 03:
So this really gets back to the one thing that I'm finding really elusive in your presentation.

[01:02:05] Speaker 03:
I understand that you think the ordinary First Amendment, prior restraints, strict scrutiny standard applies, but even taking that as the correct position in contradiction to genteel, which you would reject, I don't hear you giving any weight at all to the interest in a fair trial.

[01:02:32] Speaker 03:
And am I right that you don't?

[01:02:34] Speaker 03:
That simply because the defendant is a presidential candidate, and he wants to speak on anything he wants to speak, and he basically indiscriminately wants to post on social media, that there can be no restraint of his speech.

[01:02:52] Speaker 03:
Because any restraint, no matter how tight a nexus to protecting a fair trial is overcome.

[01:02:59] Speaker 03:
by his campaign interests.

[01:03:01] Speaker 04:
I emphasize two things in response to that question.

[01:03:03] Speaker 04:
One is that the speech at issue and the criminal trial are deeply intertwined.

[01:03:08] Speaker 04:
And the other is the statement in the Brown decision that talks about absolute freedom, at least while the campaign is pending.

[01:03:14] Speaker 03:
So your answer is there is no work that the interest in a fair trial can permissibly do in this situation

[01:03:25] Speaker 03:
that could meet the speech standard that you would apply.

[01:03:27] Speaker 04:
I wouldn't put it that way.

[01:03:28] Speaker 04:
I would say the showing would have to be extraordinarily compelling, at the very least.

[01:03:31] Speaker 04:
And again, I would quote the language of Landmark and Penningham.

[01:03:35] Speaker 03:
And as I hear your answer, sorry to interrupt, but we've been going quite a while, as I hear your answer, the compelling showing would have to show the harm had already occurred.

[01:03:45] Speaker 03:
and that it was likely to repeat.

[01:03:46] Speaker 03:
You're not able to accept the notion that there could be a prophylactic showing based on some amount of prediction.

[01:03:55] Speaker 04:
I disagree with that, because I think the standard that we cited in the landmark says imminently impending based on solidity of evidence.

[01:04:02] Speaker 04:
So that does say there could be a restriction that's entered before there is, but there would have to be this compelling evidence showing.

[01:04:08] Speaker 02:
I think the Supreme Court in Nebraska applied an imminently impending test when it analyzed

[01:04:14] Speaker 02:
the district court's concerns about, that was pre-trial publicity.

[01:04:19] Speaker 02:
I sure don't read it as doing that.

[01:04:22] Speaker 04:
I believe Nebraska evidence, one thing that it emphasized, for example, is the need for evidence in the record to support the restrictions.

[01:04:28] Speaker 04:
No, no, no, no.

[01:04:30] Speaker 02:
I don't see assessing the, quote, probable publicity.

[01:04:39] Speaker 02:
Right?

[01:04:39] Speaker 02:
And he was justified including that there would be

[01:04:42] Speaker 02:
publicity based in part on common human experience that publicity might impair the defendant's right to a fair trial.

[01:04:51] Speaker 02:
I'm reading from 562 and 563 of the opinion here.

[01:04:54] Speaker 02:
A clear and present danger of the pre-trial publicity could impinge on the right to a fair trial.

[01:05:02] Speaker 02:
Of course, his conclusion is the impact of such a publicity on prospective jurors was of necessity speculative.

[01:05:11] Speaker 02:
dealing as he was with factors unknown and unknowable.

[01:05:15] Speaker 02:
That does not sound at all to me like the, I mean you've wrapped yourself around Nebraska versus Stuart.

[01:05:22] Speaker 02:
So I just want to make sure that that language from the Supreme Court, which of course is controlling on us, what you're talking about as the predicate

[01:05:32] Speaker 02:
for the district court's showing of a need to impose some sort of restriction.

[01:05:36] Speaker 04:
I believe that decision goes on to say.

[01:05:38] Speaker 02:
It validates the terms of that specific restriction, but this is, prong one, do we need to do something?

[01:05:46] Speaker 02:
The court breaks it up in several things, right?

[01:05:49] Speaker 02:
Then it goes on to say there were other aspects of that very, very broad order that were a problem.

[01:05:54] Speaker 02:
But the need to do something, and the district court's entitlement to do something that is going to affect speech,

[01:06:01] Speaker 02:
can be based on the Nebraska showing.

[01:06:03] Speaker 02:
That's your position, because you've embraced that case, correct?

[01:06:06] Speaker 04:
I don't believe that that opinion means that you can just speculate that you need a showing on part one.

[01:06:12] Speaker 02:
I've told you what it says.

[01:06:14] Speaker 02:
You can read the whole paragraph.

[01:06:15] Speaker 02:
I'm sure you've read it many times, because you rely on this case extensively.

[01:06:19] Speaker 02:
Do you agree, or are you asking us to disagree with what the Supreme Court said was a sufficient predicate for some action?

[01:06:28] Speaker 02:
not the order in that case, but for some prophylactic action by the district court to protect the criminal process.

[01:06:34] Speaker 04:
I believe the court should follow Nebraska.

[01:06:36] Speaker 04:
I agree that the court should follow, but I disagree with the way that pair has been interpreted.

[01:06:41] Speaker 03:
Mr. Sauer, can I ask you if the district court entered an order restricting a criminal defendant from making comments about individual jurors and the defendant were a candidate for public office, would

[01:06:58] Speaker 03:
Would that order violate the First Amendment?

[01:07:01] Speaker 04:
It would depend on the context, but I do concede there'd be facts that could justify an order like that.

[01:07:05] Speaker 03:
It would depend on the context?

[01:07:07] Speaker 03:
I think so, yes.

[01:07:07] Speaker 03:
There's a situation in which, let's say the district judge prophylactically has a very powerful and vocal defendant in the case.

[01:07:19] Speaker 03:
And jurors are, you know, it's their civic duty to participate.

[01:07:27] Speaker 03:
And as a more open measure than having a sequestered jury, the district judge wants to protect the jurors and says no public comments about any of the individual juries.

[01:07:40] Speaker 03:
You think it would depend on the context, whether that order was consistent with the First Amendment?

[01:07:45] Speaker 03:
I'd say two things.

[01:07:45] Speaker 04:
We don't dispute that there could be an impaneling of an anonymous jury here, which I think is the hypothetical.

[01:07:49] Speaker 03:
Well, no, I was saying a not anonymous jury and a protection of

[01:07:54] Speaker 03:
The jurors are anonymous, don't post anything.

[01:07:59] Speaker 03:
I'm sorry, a non anonymous jury.

[01:08:03] Speaker 03:
And the question is whether the district judge consistent with the First Amendment can say off limits to comment

[01:08:12] Speaker 03:
specifically about the jurors.

[01:08:15] Speaker 04:
That's almost identical to the facts of Capital City's media where Justice Brennan, I think, stayed a rule that said you can't talk about the jurors because what was being said about the jurors was already in the public domain.

[01:08:27] Speaker 04:
He said, I can't imagine a justification that would justify that.

[01:08:31] Speaker 04:
So that's why I say it may depend on the context.

[01:08:33] Speaker 04:
Really?

[01:08:33] Speaker 04:
So is the information in the public domain already?

[01:08:36] Speaker 02:
With the internet nowadays, the address

[01:08:38] Speaker 02:
of every juror might well be in public domain.

[01:08:40] Speaker 02:
So district court issues the order.

[01:08:43] Speaker 02:
The district court issues the order that Judge Pillard referenced.

[01:08:47] Speaker 02:
And a criminal defendant then tweets out to the world, here's the name and address of the jurors deciding my case.

[01:09:01] Speaker 04:
If it got in the public domain some other way.

[01:09:04] Speaker 04:
It's already in the public domain, yes.

[01:09:06] Speaker 04:
What happened in Capital City's media is this was put in the public domain by the court.

[01:09:09] Speaker 04:
There was an open hearing.

[01:09:10] Speaker 02:
No, no, no.

[01:09:11] Speaker 02:
That's not my hypothetical.

[01:09:12] Speaker 02:
My hypothetical is the world has changed since that time period now.

[01:09:17] Speaker 02:
And the amount of information about any individual, including their address, is pretty easy to find.

[01:09:25] Speaker 02:
So if the defendant said, well, I can't tell the name of the jurors because I've been told not to.

[01:09:32] Speaker 02:
But here's the addresses of the unnamed jurors.

[01:09:36] Speaker 02:
Which is very easy.

[01:09:37] Speaker 02:
That's already out there.

[01:09:39] Speaker 02:
You can just find that with Google.

[01:09:41] Speaker 04:
Let me put it this way.

[01:09:44] Speaker 04:
I don't dispute that the First Amendment would allow a gag order from promoting individual address information of jurors with the caveat that, again, capital cities and media would probably govern in that situation.

[01:09:57] Speaker 04:
If it was a situation where that would have already been publicized by the court, Justice Brennan said there's no possible justification for that.

[01:10:02] Speaker 03:
I mean, what about now?

[01:10:03] Speaker 03:
I mean, in a situation where there isn't any publication of these individuals' relationship to this case.

[01:10:11] Speaker 04:
Right.

[01:10:12] Speaker 04:
That, I think, would be a huge problem, right?

[01:10:13] Speaker 04:
That would not.

[01:10:14] Speaker 04:
In other words, I understand the hypotheticals that no one knows who the jurors are, or no one can link those names, John Smith and Susie Jones, to those addresses.

[01:10:23] Speaker 04:
But the defendant says, here's the addresses that go to the jurors.

[01:10:25] Speaker 04:
That's very different from capital cities media.

[01:10:27] Speaker 04:
I don't dispute that that could be.

[01:10:29] Speaker 03:
But what even if they were public?

[01:10:32] Speaker 03:
If they were public, because they weren't sequestered, they're not yet public.

[01:10:37] Speaker 03:
Nobody's published that.

[01:10:38] Speaker 03:
Nobody's put it out.

[01:10:39] Speaker 03:
But they just are, as Judge Mallette was saying.

[01:10:42] Speaker 03:
If you have a little bit of information about a person, you can find out a lot.

[01:10:46] Speaker 03:
But can the judge say, fine, these people can live in public, but they can't be posted for millions of people by someone who

[01:10:58] Speaker 03:
It's not a heckler's veto, really.

[01:11:00] Speaker 03:
It's a cheerleading squad that is going to come out and amplify or act on

[01:11:09] Speaker 03:
and perhaps overreact.

[01:11:12] Speaker 04:
I think the case would have to be assessed under capital cities.

[01:11:14] Speaker 04:
We would not.

[01:11:15] Speaker 04:
I mean, keep in mind that we contend that protecting the anonymity of jurors in this case is an alternative measure that should have been considered and wasn't.

[01:11:22] Speaker 04:
It's something that we've been essentially advocating for in our briefing in this case.

[01:11:26] Speaker 04:
So it's a situation where, first amendment or not, I don't foresee any challenge to it, because we would view that as a less restrictive alternative than dragging the president's corporal into this case.

[01:11:34] Speaker 03:
I'm not trying to manage this case, which the district judge

[01:11:37] Speaker 03:
that we all know is very able to do.

[01:11:39] Speaker 03:
I'm asking about the, again, the hypotheticals to probe the nature of your position.

[01:11:45] Speaker 03:
And it is revealing of the fortitude that you accord to the First Amendment and the really lack of any role for orders protecting the judicial process.

[01:11:57] Speaker 03:
And that's what I'm hearing.

[01:11:58] Speaker 03:
And so it was instructive to me to hear your answer to that.

[01:12:01] Speaker 04:
In any event, for all the reasons we've stated in our briefs, we ask the court to reverse again.

[01:12:05] Speaker 02:
Can I ask you one more?

[01:12:05] Speaker 02:
Sure.

[01:12:06] Speaker 02:
Yes, you can.

[01:12:06] Speaker 02:
I'm sorry.

[01:12:06] Speaker 02:
We'll let you rest.

[01:12:07] Speaker 02:
I apologize that it's been long.

[01:12:09] Speaker 02:
But it's been a helpful discussion.

[01:12:11] Speaker 02:
Thank you.

[01:12:14] Speaker 02:
It's the night, and to be clear, you know far more than me about who the prospective witnesses in this case are.

[01:12:19] Speaker 02:
But let's assume former Vice President Mike Pence is going to testify.

[01:12:26] Speaker 02:
And it's the night before his testimony.

[01:12:31] Speaker 02:
Could the defendant tweet out, Mike Pence can still fix this.

[01:12:39] Speaker 02:
Mike Pence can still do the right thing if he says the right stuff tomorrow.

[01:12:47] Speaker 04:
That was more problematic than the statements we have in the record.

[01:12:51] Speaker 04:
However, you should weigh the fact that is there any reasonable prospect of influencing former Vice President Pence's testimony?

[01:12:58] Speaker 04:
Nobody contends that any statement of the defendant might influence it.

[01:13:01] Speaker 02:
I'm sorry.

[01:13:03] Speaker 02:
You're right.

[01:13:03] Speaker 02:
I was not specific enough.

[01:13:04] Speaker 02:
First, does that count as a communication to a witness?

[01:13:11] Speaker 04:
Again, I would give the answers.

[01:13:13] Speaker 04:
I know we had a discussion of this before.

[01:13:15] Speaker 04:
I'd give the answers you gave before.

[01:13:15] Speaker 04:
I've told you, it's tweeted.

[01:13:16] Speaker 04:
Depending on context.

[01:13:17] Speaker 02:
It's tweeted out.

[01:13:18] Speaker 02:
I've told you that is the full text of the tweet and it's tweeted out on his social media platform.

[01:13:23] Speaker 04:
And is it responding to something that Vice President Pence said or is it sending it back to you?

[01:13:27] Speaker 02:
It is the night.

[01:13:28] Speaker 02:
This is the sum total of facts you're not going to find anymore.

[01:13:32] Speaker 02:
You're not going to get any more context.

[01:13:34] Speaker 02:
This is it.

[01:13:36] Speaker 02:
the night before he's scheduled to testify.

[01:13:39] Speaker 02:
I'll give you one more fact.

[01:13:40] Speaker 02:
It's public record that he is testifying the next day.

[01:13:43] Speaker 02:
And that message goes out.

[01:13:49] Speaker 02:
First of all, is that communicating with the witness?

[01:13:53] Speaker 02:
Violation of the release conditions.

[01:13:55] Speaker 04:
If it's just broadcasting a statement of court political speech on social media, likely not.

[01:14:00] Speaker 02:
OK.

[01:14:01] Speaker 02:
Is that something that the district court could

[01:14:06] Speaker 02:
Prohibit consistent with your first amendment test.

[01:14:10] Speaker 04:
Only if it was based on a compelling evidentiary showing an actual threat to the administration of justice.

[01:14:15] Speaker 03:
No more showing.

[01:14:16] Speaker 03:
Only after it's happened.

[01:14:18] Speaker 02:
So you're saying that if Mike Pence then calls in sick the next day, sorry, laryngitis can't testify, then we can say you can't post about Mike Pence.

[01:14:30] Speaker 02:
That can't be the test.

[01:14:31] Speaker 02:
So you're saying there's no prophylactic rule

[01:14:34] Speaker 02:
You're saying that doesn't violate communication with witnesses.

[01:14:37] Speaker 02:
And you're saying there's no prophylactic rule, there's no circle around that communication with witnesses that the district court could draw, like prohibit that statement.

[01:14:48] Speaker 04:
This is not the First Amendment.

[01:14:49] Speaker 04:
That prophylactics would have to be based on a compelling evidentiary showing of likelihood to influence the testimony.

[01:14:55] Speaker 02:
The district court says I conclude that that communication

[01:15:02] Speaker 02:
was one, attempted communication with a witness, and in fact, likely in a completed communication with a witness, and two, was designed to and could affect a reasonable person's testimony before the court.

[01:15:21] Speaker 02:
So now you've got those two fact findings.

[01:15:23] Speaker 04:
Those fact findings would have to be based on evidence of those fact findings.

[01:15:26] Speaker 02:
You're just not going to let the district court say you can't in advance the night before trial encourage somebody's the content of their testimony.

[01:15:33] Speaker 02:
Your test doesn't even allow for that.

[01:15:36] Speaker 04:
If there's no reasonable prospect.

[01:15:37] Speaker 04:
Your test doesn't allow for that.

[01:15:39] Speaker 04:
If there is no reasonable prospect and no evidence that would actually influence anybody's testimony.

[01:15:43] Speaker 04:
Which there's not going to be.

[01:15:44] Speaker 02:
And again, it is not my test.

[01:15:45] Speaker 02:
So there's no prophylaxis.

[01:15:46] Speaker 02:
Because when you say on evidence,

[01:15:49] Speaker 02:
was actually going to influence what you want is it has to be criminal otherwise the district court can't protect it because if there's actual influence that's a crime or actual evidence that's a crime so i'm just to be clear we're back i think where we started is that i think i would stand on my prior responses okay any other questions thank you for your generous time thank you your honor we'll hear from the government we will give you some rebuttal time

[01:16:17] Speaker 01:
Thank you, Your Honor.

[01:16:18] Speaker 01:
May it please the court, Cecil Van Devender, on behalf of the United States.

[01:16:22] Speaker 01:
The district court correctly found that the defendant's well-established practice of using his public platform to target the perceived adversaries, including trial participants in this case, poses a significant and immediate risk to the fairness and integrity of these proceedings.

[01:16:36] Speaker 01:
The order that the district court crafted to address those risks should be affirmed for three principal reasons.

[01:16:41] Speaker 01:
First, the unique factual record before the district court.

[01:16:44] Speaker 01:
Second, the unusual narrowness of the resulting order

[01:16:47] Speaker 01:
And third, the recent evidence demonstrating that the defendant is fully capable of understanding and complying with the order while it's in effect.

[01:16:54] Speaker 02:
I just want to follow up here.

[01:16:55] Speaker 02:
You just said significant and immediate risk.

[01:16:58] Speaker 02:
So you're not embracing the Gentile test?

[01:17:01] Speaker 01:
No, Your Honor.

[01:17:01] Speaker 01:
To be clear, the Gentile test is the constitutional test that applies.

[01:17:05] Speaker 01:
Significant and immediate risk is the language that the district court found, so it sort of assumed that the... Those are kind of different words.

[01:17:12] Speaker 02:
Pardon?

[01:17:13] Speaker 02:
Within the law, those are substantial likelihood of material prejudice and significant and immediate risk.

[01:17:18] Speaker 02:
I think are two different legal tests.

[01:17:20] Speaker 01:
I completely agree, Your Honor.

[01:17:21] Speaker 01:
And the Gentile test of substantial likelihood of material prejudice is the correct legal test.

[01:17:27] Speaker 01:
But because the District Court incorporated the higher test of the defendant proffer, that is the significant and immediate risk test, I think that does inform the scope of the order and informs the findings of the District Court made.

[01:17:41] Speaker 01:
But to be clear, the Gentile test is the one that applies.

[01:17:44] Speaker 03:
Mr. Van Deventer, where are you

[01:17:47] Speaker 03:
Where is the finding that you're relying on?

[01:17:49] Speaker 01:
It's on page two of the order, your honor.

[01:17:59] Speaker 03:
Follow on order.

[01:18:01] Speaker 01:
Yes, this is a joint appendix page number 230.

[01:18:04] Speaker 03:
The court finds.

[01:18:08] Speaker 03:
Yes.

[01:18:08] Speaker 03:
That such statements pose a significant and immediate risk.

[01:18:11] Speaker 03:
Exactly.

[01:18:12] Speaker 03:
That witnesses will be intimidated or otherwise unduly influenced by the prospect of being themselves targeted for harassment and threats.

[01:18:19] Speaker 03:
And two, attorneys, public servants, and other court staff will themselves become targets for threats and harassment.

[01:18:26] Speaker 03:
On the second part, number two, applying to staffs of the special counsel and of the court,

[01:18:35] Speaker 03:
The nexus between the concern that they'd be targets for threats and harassment and the administration of justice is not entirely apparent from the district court's order.

[01:18:47] Speaker 03:
Can you help explain that?

[01:18:49] Speaker 03:
I mean, for example, the district judge is not, no speech relating to the district judge is gagged.

[01:18:57] Speaker 03:
And that's in part because we trust that the district judge will not be swayed by anything that the defendant says.

[01:19:04] Speaker 03:
How, then, could the district judge's staff affect the administration of justice?

[01:19:11] Speaker 01:
The district judge's staff?

[01:19:12] Speaker 03:
Yeah, any effect on them of non-criminal harassment and threats?

[01:19:18] Speaker 01:
Well, I think exposing trial participants, whether those are courtroom staff, line prosecutors, or others, to the risk of threats, harassment, intimidation poses a systemic risk to the fairness and integrity of the proceedings.

[01:19:33] Speaker 01:
How so?

[01:19:34] Speaker 01:
It creates a world in which people who are public servants will have to decide, do I want to handle this type of case?

[01:19:41] Speaker 01:
Do I want to press on with the sort of prosecution that we think the facts in the law demand?

[01:19:47] Speaker 01:
Or in doing so, will I run the risk that I will be threatened, my family will be threatened?

[01:19:55] Speaker 01:
There's a chilling effect when Paul passed over the whole proceedings if the trial participants feel like they're at risk just as a result of their participation in the case.

[01:20:04] Speaker 01:
Separately.

[01:20:05] Speaker 03:
And that's, the way you worded that, it made it sound like before they became part of the team, like in the future, other staffs might hesitate before joining the team.

[01:20:16] Speaker 03:
Is your submission also that existing staff might quit?

[01:20:22] Speaker 01:
Well, I think there's certainly a risk of that.

[01:20:24] Speaker 01:
And certainly the court doesn't have to ask each death member how likely are you to quit if your family receives a death threat?

[01:20:31] Speaker 01:
I don't think there's any basis to say that in the absence of the likelihood that you will actually be deterred from doing your job, you have to tolerate

[01:20:39] Speaker 01:
threats and harassment being directed towards trial participants.

[01:20:42] Speaker 03:
I had a very specific question.

[01:20:45] Speaker 03:
You mentioned the families and the district court from the bench said that the gag order applied to the families of the staff of the court and the prosecution and the defense counsel, but the written order doesn't reference that provision.

[01:20:59] Speaker 03:
But what is the government's position as to whether the order currently applies to family members?

[01:21:04] Speaker 01:
Our position is that it does, Your Honor, for two reasons.

[01:21:06] Speaker 01:
The beginning of the order, of course, incorporates the oral explanation.

[01:21:11] Speaker 01:
And as the court said orally, the prohibition on targeting family members, in her words, goes without saying.

[01:21:16] Speaker 01:
And so I think in district court's view, because the prohibition extends to these specific categories of trial participants, it necessarily extends to their family members as well.

[01:21:26] Speaker 03:
So as I take it, your position is less a substantive one, that it would affect their impartiality

[01:21:36] Speaker 03:
but is more a question of whether the people would even be willing and able to do the work.

[01:21:44] Speaker 01:
It's partially that it would threaten whether they are willing and able to do the work.

[01:21:48] Speaker 01:
It could also threaten the way that they are perceived by the jury.

[01:21:51] Speaker 01:
I know that my friend on the other side had suggested that the district court disavowed any sort of jury taint as a rationale for this order, but I disagree with that.

[01:21:59] Speaker 01:
What the district court did disavow was the request by the government to include within the scope of the order post-targeting the jury pool, and the District of Columbia said that can be dealt with through Voidia.

[01:22:09] Speaker 01:
I'm not going to

[01:22:10] Speaker 01:
prohibit those statements.

[01:22:11] Speaker 01:
But I think the district court very much incorporated the idea of trying the case in the media, polluting the jury pool, prejudicing the jury.

[01:22:18] Speaker 01:
If the jury is presented, uh, if the if the case is presented to the jury by people about whom there's been a months long percessive drumbeat about their corruption, inflammatory comments about them in the public, that could affect how the jury perceives them.

[01:22:36] Speaker 03:
Council, I think are there findings about that in the record?

[01:22:40] Speaker 01:
Well, the court clearly was focused very much not only on threats to trial participants, but the way that this would affect the due administration of justice, the fairness of the trial.

[01:22:53] Speaker 01:
And so that, I think, incorporates concerns about how the trial will be presented to the jury afterward.

[01:22:58] Speaker 03:
So the two mechanisms you've identified, one is that individuals would be

[01:23:07] Speaker 03:
de-energized and or deterred from even being on the team.

[01:23:12] Speaker 03:
And the other is they might be their impartiality

[01:23:19] Speaker 03:
might be tainted in the eyes of the jury.

[01:23:22] Speaker 01:
That's right.

[01:23:23] Speaker 01:
It's basically a specific example of trying the case in the media.

[01:23:27] Speaker 01:
By the day that the jurors walk into court, they have heard derogatory comments, inflammatory comments about the people that will be presented in the case.

[01:23:34] Speaker 01:
That certainly threatened the fairness and integrity of the proceedings.

[01:23:37] Speaker 02:
Isn't that exactly what the law dear is going to sort out?

[01:23:41] Speaker 01:
War Deer is moderately well situated to address those sorts of concerns, yes, but as Gentile pointed out, the availability of War Deer to sort out these types of prejudicial problems is not kind of dispositive.

[01:23:55] Speaker 01:
The court should, in fact, take preventative measures, prophylaxis measures, to prevent that sort of prejudice in the first place.

[01:24:02] Speaker 00:
Oh, I was just going to say, I heard you to be suggesting that it's not just that folks might be

[01:24:08] Speaker 00:
deter from participating in the case, but that the fact that they and their family are receiving threats might distract might interfere with their ability to carry out their roles as part of the system of justice.

[01:24:18] Speaker 00:
Is that so part of what you're saying?

[01:24:20] Speaker 01:
Absolutely.

[01:24:20] Speaker 01:
And if I can make just one factual point, because I know my friend on the other side is emphasized a couple of times that supposed lack of any submission of threats being directed towards special counsel's office.

[01:24:32] Speaker 01:
But I point the court to

[01:24:35] Speaker 01:
Page 85 of the joint appendix where it specifically says special counsel has been subject to multiple threats and the specific special counsel's office prosecutor that the defendant has targeted through recent inflammatory public posts has been subject to intimidating communication.

[01:24:47] Speaker 01:
So it's not accurate to say that there have been simply no threats or that none were in the record presented to the district court.

[01:24:55] Speaker 00:
I'm sorry.

[01:24:56] Speaker 00:
I just was going to ask you to elaborate, I think, one of your first

[01:24:59] Speaker 00:
your three principal reasons was the evidentiary records and I appreciate the point you just made, but in discussing what is unique about this evidentiary record, can you please respond to the argument that at least most of what's being relied on here is from 2020 and the fact that

[01:25:19] Speaker 00:
in opposing counsel's view, there's been a lot of intense media attention and relatively fewer threats.

[01:25:25] Speaker 00:
I just would like to hear what the strongest points you think are in response to that argument.

[01:25:29] Speaker 01:
Yes, Your Honor.

[01:25:29] Speaker 01:
So I think it's important to look at two aspects of the record that was before the district court.

[01:25:34] Speaker 01:
The first is the fact that, to my knowledge, there has never been a criminal case, and the defendant certainly has not identified one, in which the defendant has routinely, I believe his word was incessantly, taken to a public

[01:25:48] Speaker 01:
posting to a national audience to routinely vilify the prosecutors as thugs, as deranged, as lunatics, to malign the court as fraud and hack and to attack witnesses based on their credibility and the substance of their anticipated testimony, calling them liars, cowards, weak, saying one deserves the punishment of death.

[01:26:08] Speaker 01:
That alone, I think, would be sufficient for the district court to act.

[01:26:12] Speaker 01:
But you combine that with a record going back a number of years, but continuing to this day, in which numerous people have been targeted as a result of the defense post.

[01:26:21] Speaker 01:
And I think there are 16 different people that are documented in the record.

[01:26:25] Speaker 01:
Eight of them are from the 2020-2021 period, which I believe Judge Garcia, as you noted, is hardly

[01:26:32] Speaker 01:
some tangential time period to this case.

[01:26:35] Speaker 01:
This is exactly the core of what this case is all about, this period after the election.

[01:26:41] Speaker 01:
Some of those, of course, go through today.

[01:26:43] Speaker 01:
We talk about, of course, the threat to Judge Chuckin, and then we have threats to the district attorney in New York, threats to the district attorney and the sheriff of Fulton County, threats to the former president, threats to the judge chambers presiding over the ongoing civil trial.

[01:27:00] Speaker 01:
all from the last few weeks.

[01:27:02] Speaker 01:
So the notion that there was some dynamic that existed in 2020 that has since abated or gone stale, I think is wrong.

[01:27:10] Speaker 02:
How do we know what he gets held accountable for?

[01:27:19] Speaker 02:
I mean, this is the internet era.

[01:27:24] Speaker 02:
He's a high profile public figure who posts

[01:27:28] Speaker 02:
has lots and lots and lots of followers.

[01:27:32] Speaker 02:
But it's also covered on news channels that have listeners and newspapers that have readers and all manner of media can communicate his words to people of the public.

[01:27:46] Speaker 02:
How, I mean, how do we, how does the district court reasonably decide which postings

[01:27:58] Speaker 02:
He is responsible for prompting adverse conduct, resulting adverse conduct and which are, he's protesting, he's expressing his views as the first amendment allows.

[01:28:13] Speaker 02:
And in a social media world cannot be held responsible for what everyone anywhere in the United States does when they hear about it.

[01:28:25] Speaker 01:
To answer that, Your Honor, I think first is the sheer number of occurrences.

[01:28:28] Speaker 01:
So certainly if there had been one time when he posted something derogatory about a person and then at some point thereafter that person was a recipient of a threat, I don't think he would be here.

[01:28:39] Speaker 01:
The sheer number combined with the testimony of the people who experienced it on the receiving end who said what changed when the defendant tweeted about me was I started getting much more graphic, much more specific, much more pervasive threats.

[01:28:53] Speaker 01:
when, as one of the witnesses, a poll worker in Georgia testified to Congress.

[01:28:57] Speaker 02:
Do you have any of that with respect to his statements about this criminal trial?

[01:29:01] Speaker 01:
Uh, no.

[01:29:02] Speaker 01:
Um, none of the people who have been directly threatened as a result of this criminal trial have testified about that exact phenomenon.

[01:29:08] Speaker 01:
Although again, um, I think the context around threat to the district court is worth emphasizing.

[01:29:13] Speaker 01:
So the indictment came down on August 1st.

[01:29:16] Speaker 01:
The arraignment was on August 3rd before traveling to the arraignment.

[01:29:20] Speaker 01:
He issued a public statement saying unfair venue, unfair judge.

[01:29:25] Speaker 01:
Uh, the next day he posted, if you go after me, I'm coming after you.

[01:29:28] Speaker 01:
And the day after that,

[01:29:29] Speaker 01:
the district court received the death threat.

[01:29:31] Speaker 01:
So yes, it's a matter of inference, circumstantial evidence, of course, but the district court made those findings, and to Judge Pillard's point earlier, those are findings of historical fact that should be reviewed for clear error.

[01:29:43] Speaker 02:
Because I know that you referred us to the district court on page A85.

[01:29:52] Speaker 02:
Special counsel has been subject to multiple threats.

[01:29:54] Speaker 02:
That's one thing.

[01:29:56] Speaker 02:
But the special counsel's office has been targeted through inflammatory public posts.

[01:30:05] Speaker 02:
I guess intimidating communications and then inflammatory public posts.

[01:30:14] Speaker 02:
But doesn't the first amendment protect

[01:30:17] Speaker 02:
And this is, to be clear, these comments are coming in the course of a presidential campaign.

[01:30:22] Speaker 02:
All right.

[01:30:22] Speaker 02:
I guess at this point a party nomination campaign.

[01:30:26] Speaker 02:
Inflammatory language?

[01:30:31] Speaker 02:
So you honor our position?

[01:30:32] Speaker 02:
Surely there has, you know.

[01:30:34] Speaker 02:
I asked them about balance for the protecting the criminal process.

[01:30:38] Speaker 02:
I guess I'm asking your position, which doesn't seem to give much balance at all to the first amendment's vigorous protection of political speech.

[01:30:50] Speaker 02:
And the notion that high profile public figures or governmental officials who've taken on enormous responsibility like prosecutors can't stand up to some inflammatory

[01:31:03] Speaker 02:
language seems to be to contradict Supreme Court precedent and seems to be sort of a very troubling lack of balance on the free speech side on the part of the prosecution in this case.

[01:31:15] Speaker 01:
Our position, Your Honor, is not that these statements

[01:31:18] Speaker 01:
in a vacuum are unprotected.

[01:31:20] Speaker 01:
It's that genteel presupposes that the restricted language is protected.

[01:31:24] Speaker 01:
As Justice Kennedy said there, that was classic political speech directed towards the government.

[01:31:28] Speaker 01:
Nevertheless, it can be proscribed if there's substantial likelihood of material prejudice to the proceedings.

[01:31:33] Speaker 02:
And how do inflammatory posts about the special prosecutor create a substantial threat of material prejudice to the proceedings?

[01:31:43] Speaker 01:
So that's where I think we tied back to the record, which is that there is a pattern, there's a dynamic, it's very clear that when the defendant engages in repeated inflammatory personal attacks on someone, there's a causal link between that person then receiving harassment, threats, and intimidation.

[01:32:01] Speaker 02:
And as I was- Well, if there's actual threats, then that's a crime and that can be dealt with.

[01:32:07] Speaker 02:
Yes, but also- If it's short of that,

[01:32:11] Speaker 02:
If it's, I mean, you know, again, we've had, we had, you know, the Fifth and Sixth Circuit cases, and if you've got someone who says that, that prosecutor's out to get me, then I think there's allegations that the prosecutor's racist in one of the cases.

[01:32:28] Speaker 02:
This is all a political vendetta.

[01:32:32] Speaker 02:
Are those things allowed?

[01:32:34] Speaker 02:
They're pretty inflammatory.

[01:32:35] Speaker 01:
Well, the district court tried to craft a very narrow order that allows him ample room to criticize the prosecution.

[01:32:45] Speaker 02:
How does it do that if you say you can't target the special counsel?

[01:32:50] Speaker 01:
Well, the district court I think draws a very clear distinction between

[01:32:53] Speaker 01:
attacking institutions and processes on the one hand and attacking individual trial participants on the other.

[01:32:59] Speaker 01:
So saying that the prosecution is politically motivated.

[01:33:02] Speaker 02:
The prosecution is a governmental institution.

[01:33:06] Speaker 02:
Right?

[01:33:07] Speaker 02:
It's not a personal job.

[01:33:09] Speaker 02:
It is the government, right?

[01:33:10] Speaker 02:
When the prosecution speaks, even when it's an independent counsel, they speak for the United States government.

[01:33:16] Speaker 02:
So I'm not sure that line works so well.

[01:33:18] Speaker 01:
No, that's absolutely right.

[01:33:19] Speaker 01:
Maybe I was unclear.

[01:33:20] Speaker 01:
What I'm saying is attacks on the prosecution, calling it unfair, calling it politically motivated, those are all fair game.

[01:33:28] Speaker 02:
But you can't say the prosecutor is politically motivated.

[01:33:31] Speaker 02:
That, I think, well... That would certainly count as targeting the prosecutor.

[01:33:37] Speaker 01:
I think the special counsel himself is a somewhat unique case because he is both an individual trial participant and very much represents the institutional interests of the Department of Justice.

[01:33:47] Speaker 01:
So for him, we would concede that merely kind of referencing him or criticizing him... The prosecutor's working with him and under his supervision.

[01:33:57] Speaker 02:
You can't say they're politically motivated.

[01:33:59] Speaker 01:
If you're talking about individual line prosecutors, particularly if you're mentioning them by name, then the no, the mechanism for that, as Judge Pillard alluded to, is a file of motion.

[01:34:11] Speaker 02:
Certainly, if you think that there's some political bias on- Is it a file of motion every single time he wants to say, all the prosecutors in the office are politically biased against me?

[01:34:20] Speaker 02:
To be clear- It might not be true factually, it might be, who knows?

[01:34:23] Speaker 02:
But I'm not suggesting that it is, it's just a question.

[01:34:26] Speaker 02:
But if in his mind, if in his view,

[01:34:29] Speaker 02:
All the prosecutors in the office are politically biased against him.

[01:34:33] Speaker 02:
He has to file a motion before he can say that?

[01:34:36] Speaker 02:
That's not much taking much account of the First Amendment interests at stake.

[01:34:41] Speaker 01:
Well, I think if it's at such a high level of generality, everyone... How can you tell that from this order?

[01:34:46] Speaker 02:
That's definitely targeting folks in the special counsel's office.

[01:34:50] Speaker 02:
So it's definitely prohibited.

[01:34:51] Speaker 02:
So I think that's why you're saying he has to go file a motion to make sure he's allowed to say that.

[01:34:56] Speaker 01:
The motion I'm alluding to, Your Honor, is not a motion to ask for permission to speak about it.

[01:35:01] Speaker 01:
What I'm talking about is avoiding a two-track process here where there are claims that get presented in court and then a whole separate effort to kind of malign the people involved, suggest that there's some improper purpose or motivation or bias that's never even raised with the court.

[01:35:18] Speaker 01:
Court, I mean, the defendant is free, of course, if he thinks that there's a colorable claim of prosecutorial misconduct or prejudice, likewise judicial, to file a motion seeking disqualification, dismissal, and then he can talk about the fact that those filings exist.

[01:35:32] Speaker 01:
But what he can't do is say, I'm going to have this churning narrative that there is political bias, but I've never presented it to the court.

[01:35:42] Speaker 02:
So imagine, I understand he hasn't participated in debates thus far, but if he were to choose to participate in a debate and his, the other folks who are competing for the Republican nomination, let's just say they spend a lot of time talking about, you know, you're an indicted felon, you're going to, you're being prosecuted by the United States government, you're, you know,

[01:36:04] Speaker 02:
They'll prognosticate you're going to, you know, you could be found to be a criminal before the election.

[01:36:10] Speaker 02:
And they have all this evidence against you, the millions of pages that they talk about in the record here.

[01:36:16] Speaker 02:
And so they're going on and on and on during the debate about this criminal prosecution.

[01:36:25] Speaker 02:
And you're telling me he can't say public record prosecutors paid by the taxpayers, your names are public record.

[01:36:34] Speaker 02:
A, B, and C, prosecutors.

[01:36:38] Speaker 02:
It's all a political vendetta.

[01:36:41] Speaker 02:
They all are doing the bidding of Joe Biden.

[01:36:45] Speaker 02:
Yeah, I'm not saying anything's true here.

[01:36:47] Speaker 02:
I'm just saying that that's not the test for free speech in this country, thankfully.

[01:36:51] Speaker 02:
He can't stand on the stage and say that.

[01:36:54] Speaker 01:
So, Your Honor, he can certainly say, this politically motivated prosecution brought by my political opponent, the Department of Justice is corrupt, I will be vindicated in trial, all of that stuff.

[01:37:03] Speaker 02:
But when he starts naming... He has to speak mismanaged while everyone else is throwing targets at him.

[01:37:10] Speaker 03:
Well, and it can't be that he can't mention Mr. Smith, who, I mean, for most people in the United States, given the number of

[01:37:19] Speaker 03:
legal battles in which this defendant is embroiled.

[01:37:23] Speaker 03:
The easiest way people have of referring to this case as opposed to the others is Jack Smith.

[01:37:30] Speaker 03:
Surely he has a thick enough skin.

[01:37:32] Speaker 03:
He's on this team.

[01:37:33] Speaker 03:
The two interests that you mentioned, which are one, the person would be dissuaded.

[01:37:40] Speaker 03:
I have

[01:37:41] Speaker 03:
little doubt that he will not be dissuaded.

[01:37:44] Speaker 03:
And then the other, that his impartiality or integrity would be impugned in the face of the jury.

[01:37:52] Speaker 03:
First of all, I'm not sure I see the district court having made any such determination or even followed that reasoning.

[01:38:03] Speaker 03:
Am I missing something supportive of that link?

[01:38:07] Speaker 01:
Well, I think it's very clear that the

[01:38:11] Speaker 01:
Discord is, because the whole rationale is premised on ensuring the integrity of the proceedings and the fairness of the trial, of course, the court wants to make sure that the jury is not presented with extraneous information that would not be admissible in court that could prejudice their determinations.

[01:38:26] Speaker 01:
And I think part and parcel of that is how they view the trial participants.

[01:38:30] Speaker 03:
But to go back to- How can, I mean, I guess Judge Mullad has already asked these questions.

[01:38:34] Speaker 03:
Given all of the issues that are both

[01:38:40] Speaker 03:
before the court in this case and before the public in the election.

[01:38:44] Speaker 03:
It's hard to see how this portion of the restrictive order is going to succeed in preventing a trial in the court of public opinion.

[01:38:59] Speaker 03:
I took her order to more be focused on protecting individuals, protecting witnesses from threats, from harassment, from, you know, fawning and efforts to positively motivate them and the like.

[01:39:19] Speaker 03:
Not to shield the veneer.

[01:39:22] Speaker 03:
But you take a different view.

[01:39:23] Speaker 01:
Well, no, I think I would agree that that is the principal motivation, certainly shielding people from harassment, threats and intimidation, both witnesses and other trial participants.

[01:39:32] Speaker 01:
And certainly that includes the line prosecutors handling the case.

[01:39:36] Speaker 01:
Again, special counsel himself is a slightly different case because he is both an individual trial participant and a representative of the institution.

[01:39:44] Speaker 01:
And so that's why we would say that merely mentioning him would not violate the order.

[01:39:48] Speaker 01:
That would not be tart.

[01:39:49] Speaker 01:
Whereas in the debate, Your Honor, if.

[01:39:53] Speaker 02:
I do want to hear that answer.

[01:39:55] Speaker 02:
I was going to ask a question.

[01:39:56] Speaker 02:
But before I do, I'm still struggling with how you distinguish.

[01:40:01] Speaker 02:
I mean, maybe the.

[01:40:05] Speaker 02:
The special prosecutor is in somewhat different place, but that does not mean that prosecutors working with him, assistant prosecutors, or whatever the title, deputies, are not public figures themselves.

[01:40:22] Speaker 01:
Would you agree?

[01:40:23] Speaker 01:
They can be public figures for certain purposes.

[01:40:25] Speaker 02:
OK, so then it shouldn't matter.

[01:40:28] Speaker 02:
If I can't on the debate stage, and I guess now you can do that answer on the debate stage, why can't?

[01:40:37] Speaker 02:
The defendants say A, B, and C, whoever is the prosecutorial team in the particular case, biased, racist, anti-American, whatever deplorable adjectives.

[01:40:56] Speaker 01:
I think in context, I think you'd have to view that as basically the meddlesome priest problem.

[01:41:00] Speaker 01:
Why is he mentioning individual line prosecutors, but for holding them up to scorn in the public and increasing the likelihood of their being targeted?

[01:41:11] Speaker 02:
Well, I have to say, they make a good point that I'm not sure that while no one rid me of this meddlesome priest, why not have a more

[01:41:21] Speaker 02:
First Amendment debate, you'd have to really make the showing.

[01:41:24] Speaker 02:
If it's sort of the godfather, will someone get rid of the snitch for me?

[01:41:29] Speaker 02:
That's one thing.

[01:41:30] Speaker 02:
But you'd have to make that kind of showing.

[01:41:33] Speaker 02:
But if someone high up says, will someone just make this problem go away, could he not say, will someone just make these cases go away?

[01:41:43] Speaker 02:
It's a political vendetta.

[01:41:46] Speaker 02:
Let the American people decide.

[01:41:48] Speaker 02:
Can you not say that?

[01:41:50] Speaker 01:
Someone make these people, these cases go away, the sepulchral vendetta, that would be consistent with the order.

[01:41:55] Speaker 01:
That would not violate it, yes.

[01:41:57] Speaker 02:
So tell me about your debate, what your view of, boy, it would be really hard in the debate.

[01:42:03] Speaker 02:
Whatever else is going at you, full bore, and, you know, your attorneys will have to script the little things that you can say.

[01:42:12] Speaker 01:
Your honor, I respectfully disagree that there be anything particularly challenging about a rule that says naming individual line prosecutors somehow, you know, is too complicated, too hard to follow.

[01:42:23] Speaker 01:
He can say everything he wants to say.

[01:42:25] Speaker 02:
You don't think he can name line prosecutors by name?

[01:42:28] Speaker 01:
I think that would be presumptively inactive targeting.

[01:42:31] Speaker 01:
Context could suggest otherwise, but naming... What context do you need?

[01:42:35] Speaker 02:
I've got my debate here.

[01:42:37] Speaker 02:
It's a matter of public record.

[01:42:40] Speaker 02:
You're receiving the

[01:42:41] Speaker 02:
pay of you're paid by the taxpayers and he can't say by name that person once you've appeared and spoken in open court in the case against him our views that is presumptively targeting within the meaning of the order but it's targeting because you're in front of the special counsel that's right it's targeting because what's your definition of target

[01:43:04] Speaker 01:
Targeting, in our view, means singling someone out for the sort of negative attention that poses a significant immediate risk of there being a recipient of threats, harassment, and intimidation.

[01:43:13] Speaker 03:
But negative is viewpoint-based.

[01:43:14] Speaker 03:
So the district court corrected.

[01:43:16] Speaker 03:
The reason she chose targeting instead of the language that you proposed was because you didn't want to make the order viewpoint-based and make it more defensible.

[01:43:22] Speaker 03:
But I think you're right that the targeting does raise a little bit of unclarity.

[01:43:29] Speaker 03:
And I wonder whether you comment on the

[01:43:31] Speaker 03:
on the proposed alternative that I mentioned to Mr. Sauer, which is that if the order prohibited comment on any reasonably foreseeable witness or the court staff, but let me limit it to the witnesses, reasonably foreseeable witness because of witnesses' potential participation in the trial.

[01:43:52] Speaker 03:
Because one of the difficulties is disaggregating the public figures who are in the political arena.

[01:44:00] Speaker 03:
in other ways, writing books and who are intends to testify at trial here.

[01:44:11] Speaker 03:
Does that do the work that you need?

[01:44:13] Speaker 03:
Does it pose different constitutional concerns that I'm not appreciating?

[01:44:19] Speaker 01:
I don't think it poses any additional constitutional concerns.

[01:44:23] Speaker 01:
I think that would be a perfectly valid gloss on that portion of targeting.

[01:44:28] Speaker 01:
I do think it omits another important component, which is this concern about exposing people to threats, harassment, intimidation.

[01:44:36] Speaker 01:
So if the defendant were to say, you know, not with any reference to their testimony, but to say this person, you know,

[01:44:45] Speaker 01:
a coward, a liar, and a treason, and deserves a punishment of death.

[01:44:48] Speaker 01:
Without any reference to what the substance of the testimony would be, I think that would still violate the order.

[01:44:51] Speaker 03:
Except couldn't you give in context that there's no other reason that this person's being targeted?

[01:44:58] Speaker 03:
The reason they're talking about that is because of the testimony.

[01:45:02] Speaker 03:
Whereas when General Milley has written a book and is spoken publicly about his efforts to shield the world from the consequences of the defendant's

[01:45:14] Speaker 03:
conduct, that has got to be fair game.

[01:45:19] Speaker 01:
Certainly fair game to comment on.

[01:45:21] Speaker 01:
I don't think anybody suggests otherwise.

[01:45:24] Speaker 03:
But I think it's... So what's not fair game?

[01:45:27] Speaker 03:
So he can comment.

[01:45:29] Speaker 00:
Yes.

[01:45:29] Speaker 03:
And he can comment very critically.

[01:45:32] Speaker 01:
What can he not do?

[01:45:34] Speaker 01:
Use the sort of inflammatory language that poses a significant risk that they will be subject to threats, harassment, intimidation.

[01:45:41] Speaker 01:
And so, you know, the line between saying conduct like this by the chairman of the Joint Chiefs of Staff is intolerable and democratic society.

[01:45:49] Speaker 01:
And saying, on the other hand, this warrants the punishment of death is a particularly abstract or difficult line to draw.

[01:45:58] Speaker 03:
Yeah.

[01:45:59] Speaker 03:
So it's comments that will predictably trigger the loyalist zeal, or what Mr. Sauer refers to as the heckler's veto.

[01:46:06] Speaker 03:
And that just took me a long time to figure out what he was referring to in terms of heckler's veto.

[01:46:11] Speaker 03:
But it's the triggering third party conduct.

[01:46:14] Speaker 03:
what I would tag as the loyalist's zeal.

[01:46:17] Speaker 03:
That's right.

[01:46:18] Speaker 03:
That's what your aim is, is that the defendant can comment on all kinds of things, but when he does so in a way likely to trigger this excessive zeal, that that is what you're, how you read the district court is targeting that kind of, or barring that kind of speech.

[01:46:43] Speaker 03:
That's right.

[01:46:44] Speaker 01:
And in going back, um, Judge, what's your post?

[01:46:48] Speaker 02:
I'm sorry.

[01:46:49] Speaker 02:
Well, I didn't interrupt you.

[01:46:50] Speaker 02:
Ask my answer.

[01:46:51] Speaker 02:
Go ahead.

[01:46:51] Speaker 02:
But then I do want to talk a little more on this Mark Milley thing.

[01:46:54] Speaker 01:
Generally going back to the question about, you know, what can he say during the debate?

[01:46:58] Speaker 01:
I mean, I think it's also worth looking at some of the things that he said in TV interviews and even in one of the posts that the district court used as an example in the order denying the motion to stay of what's permissible.

[01:47:09] Speaker 01:
So in that post, he's talking about, um, you know, the, uh,

[01:47:13] Speaker 01:
political bias in this prosecution, how it's been brought by the incumbent administration.

[01:47:17] Speaker 01:
And he says at trial, we will 100% prove with evidence that

[01:47:21] Speaker 01:
you know, that I won the election and so forth.

[01:47:24] Speaker 01:
He can always say what every other criminal defendant in every other case says.

[01:47:28] Speaker 01:
Once we get the trial, I'm going to prove all this with evidence.

[01:47:32] Speaker 01:
The necessity to single out trial participants that have not been the subject of any sort of litigation, just as sort of a personal singling out, just to put their name in the public, I think is presumptively an active target.

[01:47:46] Speaker 02:
So if I'm on J-130, which is the General Milley Post,

[01:47:50] Speaker 02:
Can you tell me which parts of that were, because this was the day after General Milley did an interview about his book.

[01:48:00] Speaker 02:
It wasn't right after the indictment.

[01:48:03] Speaker 02:
It says nothing about the criminal trial or General Milley's prospective role or not in it.

[01:48:12] Speaker 02:
And so tell me what of this, is everything okay except the punishment would have been death?

[01:48:19] Speaker 02:
Is everything else okay?

[01:48:21] Speaker 02:
Yes, I would say so, and I think the important context to know when reviewing... Is he wrong that... I'm not talking factually about this particular situation about which obviously we have none of the details before us, but is it wrong at least historically that

[01:48:39] Speaker 02:
Again, not talking about this conduct in particular, but some acts of treason were punishable by death.

[01:48:45] Speaker 01:
No, that's not wrong.

[01:48:46] Speaker 01:
And the district court was free to... Isn't that all he said?

[01:48:50] Speaker 01:
Well, the district court was free to decide whether he included that language to make kind of the abstract historical point about what the punishment for treason was in times gone by, or was he saying it to... Well, what do you... I think for...

[01:49:07] Speaker 02:
I've talked at least about the need to balance.

[01:49:11] Speaker 02:
And, you know, it's not how I want my children to speak, but that's really not the question.

[01:49:17] Speaker 02:
And so the question is, what in here in this post, including the reference to historical capital punishment for treason, connects that to the criminal trial?

[01:49:30] Speaker 02:
Connects anything about this post to the criminal trial, the criminal process, General Milley's

[01:49:36] Speaker 02:
potential or not.

[01:49:37] Speaker 02:
I don't have no idea participation in the criminal trial.

[01:49:40] Speaker 01:
So on its face, it doesn't allude to his testimony, but it's important to timing.

[01:49:44] Speaker 02:
You don't have the timing.

[01:49:45] Speaker 01:
We do have an important distinction in time is that the information about General Milley and his conversations with with China that all came out in 2021.

[01:49:54] Speaker 01:
The defendant

[01:49:57] Speaker 01:
had a reaction to that news then.

[01:49:59] Speaker 01:
He was not calling for him to be put to death, suggesting that death was an appropriate punishment.

[01:50:03] Speaker 01:
He started doing that once he was indicted.

[01:50:06] Speaker 02:
Wasn't this the day after General Milley did an interview about his book?

[01:50:10] Speaker 02:
Yes, yes.

[01:50:12] Speaker 01:
It was in the news again, but his reaction to it post indictment, once he knew that General Milley was a potential trial witness, was very different than what his reaction was in 2021 when General Milley was not a potential trial witness against him.

[01:50:24] Speaker 02:
So pretty much once there's an indictment, he just can't, he's really under the disorder, he just really can't say anything about folks who are either known or reasonably foreseeable witnesses.

[01:50:39] Speaker 01:
I disagree, I think there's a perfectly comprehensible line between the sorts of things that use inflammatory and disparaging language.

[01:50:47] Speaker 02:
Can you say anything disparaging about someone?

[01:50:51] Speaker 02:
You just said inflammatory and disparaging, so take off inflammatory.

[01:50:54] Speaker 02:
Is he allowed to say anything disparaging about someone?

[01:50:58] Speaker 02:
Well, make it easy.

[01:50:58] Speaker 02:
He knows he's going to be a witness now that there's been an indictment between now and the trial, obviously after trial is a different thing.

[01:51:04] Speaker 01:
I think he can criticize them so long as he's not using either inflammatory language or attacking their credibility in a way that's going to shape how the jury sees them.

[01:51:13] Speaker 01:
That's another example of trying the case in the media.

[01:51:18] Speaker 03:
I'm trying to understand with respect to these high public figures,

[01:51:24] Speaker 03:
They, like everyone else in the country, are protected against true threats.

[01:51:30] Speaker 03:
They're protected against criminal efforts to affect their testimony.

[01:51:35] Speaker 03:
They can be prosecuted for that.

[01:51:40] Speaker 03:
I mean, the defendant could be prosecuted for threatening them in violation of the criminal law.

[01:51:47] Speaker 03:
But when we step back and think about a protective order to protect the integrity of the proceeding, the mechanism is that they would be, their testimony would be affected?

[01:51:58] Speaker 01:
That's very hard for me to imagine.

[01:52:03] Speaker 01:
I don't think that the test is whether any particular witness who was targeted will actually change their testimony or refuse to testify.

[01:52:10] Speaker 03:
Or that it would be reasonably foreseeable that, you know, because you're right, this is a prophylactic situation.

[01:52:18] Speaker 03:
I would assume that their testimony would not be affected, that Mr. Barr, General Milley, former Vice President Pence, I take part of your position to be that there's a performance of their vulnerability that then would affect unknown non-public figure witnesses?

[01:52:39] Speaker 01:
That's exactly right.

[01:52:39] Speaker 01:
There's a clear kind of knock-on effect.

[01:52:42] Speaker 01:
If you're a witness out there, and there are many, many witnesses who fall in this category, not public officials, no recourse to marshals or Secret Service protection, if they see that General Milley can be suggested he should be put to death, if they see the former chief of staff can be called a coward, then they are going to absolutely be challenged.

[01:53:02] Speaker 01:
And why would I come forward and give the facts that I know about this case if the result is going to be that I'll be subject to the same treatment?

[01:53:08] Speaker 03:
This is a very small question, and it reveals my lack of technical prowess.

[01:53:16] Speaker 03:
But is there any way preventatively to protect someone's technology?

[01:53:24] Speaker 03:
Let's say I'm a prospective juror.

[01:53:26] Speaker 03:
Can I be protected technologically from boxing?

[01:53:35] Speaker 01:
Well, you're asking about whether there are available technology that would sort of remove your personal information from the internet?

[01:53:41] Speaker 03:
Or just if they would filter, I don't know, if things start coming through that are so fast and furious from strangers.

[01:53:47] Speaker 03:
Because it does seem like there's a real phenomenon that is actually quite disabling and terrifying.

[01:53:55] Speaker 03:
Yes, absolutely there is.

[01:53:58] Speaker 03:
But I'm wondering whether there are ways in anticipation of that.

[01:54:01] Speaker 03:
that that can be mitigated short of.

[01:54:04] Speaker 03:
Because we do have, as you appreciate, the problem of speech by the defendant.

[01:54:10] Speaker 03:
And then it has the knock-on effect with the loyalist's zeal.

[01:54:16] Speaker 03:
And that's then what causes direct efforts at threatening and harassing individuals.

[01:54:24] Speaker 03:
And I just wonder if there's any non-protective order.

[01:54:29] Speaker 03:
Are there tools?

[01:54:30] Speaker 01:
I'm not aware of technological tools that would work nearly as well as mitigating this prejudice at the source.

[01:54:38] Speaker 01:
If they exist, I think they are not widely used and not easy to incorporate, particularly for every witness and every potential juror and so forth.

[01:54:51] Speaker 00:
Can I just want to clarify a few things about the scope of the order as you see it.

[01:54:56] Speaker 00:
So you mentioned you think that one of the interests in this order is protecting sort of jury perceptions.

[01:55:04] Speaker 00:
So one of the examples in the district court transcript is essentially X is a slimy liar without any more context.

[01:55:13] Speaker 00:
Is it the government's view that that's prohibited by this order?

[01:55:17] Speaker 01:
Yes, your honor.

[01:55:17] Speaker 01:
If it's directed towards the foreseeable trial, yes.

[01:55:22] Speaker 00:
So it's Bill Barr goes on 60 minutes and gives an interview and criticizes Mr. Trump's fitness office in part January 6th, the events related to January 6th.

[01:55:34] Speaker 00:
Mr. Trump can't go online and say everything he just said is false.

[01:55:39] Speaker 01:
Everything he just said is false.

[01:55:40] Speaker 01:
I think it's different from using either inflammatory language or attacking his credibility directly.

[01:55:45] Speaker 01:
I know that that's a little bit of a fine line.

[01:55:49] Speaker 01:
But yes, I think if the direct attack on credibility or an inflammatory comment is likely to result in threats and harassment, that's one thing.

[01:55:57] Speaker 01:
If it's just a generalized criticism of his performance as the attorney general or disagreement with what he has said, I think that would be another.

[01:56:03] Speaker 02:
Is slimy liar inflammatory?

[01:56:07] Speaker 01:
I think it's inflammatory and a direct comment on credibility.

[01:56:11] Speaker 02:
What if he just said he's a liar?

[01:56:14] Speaker 01:
Well, I think that also would be a comment on credibility that would be prohibited by the order.

[01:56:19] Speaker 02:
So it doesn't have to be calling someone a liar itself inflammatory?

[01:56:25] Speaker 01:
A liar itself would not fall into the category of inflammatory.

[01:56:28] Speaker 02:
So any attack on the credibility of someone who's a prospective witness.

[01:56:32] Speaker 02:
Yes, yes.

[01:56:36] Speaker 02:
deeper into the campaign, and someone who is done testifying, but the trial's still going on, goes out and campaigns with a Democratic nominee.

[01:56:58] Speaker 02:
Brings them up on stage.

[01:57:00] Speaker 02:
This is why you should vote for me.

[01:57:05] Speaker 02:
heard what he said about what would happen.

[01:57:07] Speaker 02:
If we had another Trump administration, he's got a whole book.

[01:57:11] Speaker 02:
It's on sale at the table over there, special discount for people attending the rally.

[01:57:16] Speaker 02:
But now stand up here at the podium, Mr. X, and tell us about your experiences working with him and why I should be president instead of him.

[01:57:27] Speaker 02:
All this is going on and you are telling me

[01:57:34] Speaker 02:
that former President Trump, the First Amendment balance in the criminal process would not allow him to say, Mr. Axe is a liar.

[01:57:46] Speaker 02:
He's lying in what he said.

[01:57:49] Speaker 02:
I was a good president.

[01:57:51] Speaker 02:
He can't say that.

[01:57:53] Speaker 01:
He can certainly say, I was a good president.

[01:57:54] Speaker 01:
I disagree with everything that he said.

[01:57:57] Speaker 02:
I'm sorry.

[01:57:57] Speaker 02:
He can say, I disagree.

[01:57:59] Speaker 02:
But he can't say he lied.

[01:58:01] Speaker 01:
These are corner cases, I would agree.

[01:58:04] Speaker 02:
Where you didn't have any hesitation telling me that he couldn't do it.

[01:58:08] Speaker 02:
I don't think it didn't seem like a tough case to you.

[01:58:10] Speaker 02:
He said no, he can't can't call anyone a liar.

[01:58:12] Speaker 02:
Can't you said can't comment on credibility?

[01:58:16] Speaker 01:
Yes, we think commenting on a witness's credibility about the substance of their testimony is presumptive.

[01:58:21] Speaker 02:
He's commenting on the credibility about what they said at the political rally.

[01:58:26] Speaker 01:
That's right.

[01:58:27] Speaker 01:
And if it goes to the substance of their testimony and about their credibility, then it's presumptively violent.

[01:58:31] Speaker 02:
We'll say 10% of what he said related to the trial testimony that Mr. X gave the day before.

[01:58:36] Speaker 02:
And 90% did not, but just was a tirade against the political opponent of the person on whose behalf he's speaking.

[01:58:49] Speaker 02:
A tirade against the former President Trump.

[01:58:52] Speaker 02:
In the midst of the election,

[01:58:56] Speaker 01:
So he has a lot of space to say, I disagree with everything that he said, we're gonna prove at trial that what he said is not true.

[01:59:04] Speaker 01:
But when he's trying the case in the media and, you know, look, a single word, like that's a lie, that's a liar, I think it's extremely unlikely that the government's not gonna be moving.

[01:59:15] Speaker 02:
Is it covered by the order?

[01:59:17] Speaker 02:
I don't wanna know whether the government's moving forward.

[01:59:19] Speaker 02:
I wanna know whether it falls within the scope of this order that is being challenged on First Amendment grounds, and I think you've said

[01:59:25] Speaker 02:
repeatedly that yes, it is.

[01:59:28] Speaker 02:
Maybe you'll exercise restraint, but he says that when someone has just attacked him viciously in the press with their views, I shouldn't say attacked him, but has unloaded as if it is a very political dynamite against him.

[01:59:44] Speaker 02:
And he can't say, can he say it's untrue with that person that is untrue?

[01:59:50] Speaker 02:
Can he say that?

[01:59:51] Speaker 02:
He can't, yes.

[01:59:51] Speaker 02:
Okay, but he can't say that person speaks, is an untruth speaker.

[01:59:57] Speaker 02:
If it's about that, can you say they're an untruth speaker?

[02:00:00] Speaker 01:
Yes.

[02:00:01] Speaker 01:
But can't say they're a liar.

[02:00:03] Speaker 01:
But the sorts of attacks on credibility, he is a liar.

[02:00:07] Speaker 02:
So his attorneys, when he says, here's my speech, here's what I want to say, and they have to X out liar and put in untruth speaker.

[02:00:14] Speaker 01:
Not that they have to put in untruth speaker.

[02:00:16] Speaker 01:
They have to avoid a direct... Do you have another word we could put in instead of untruth speaker?

[02:00:22] Speaker 02:
Sure.

[02:00:23] Speaker 02:
What he said was untrue, and here's why.

[02:00:25] Speaker 02:
No.

[02:00:25] Speaker 02:
He wants to talk about that person's character, penchant.

[02:00:30] Speaker 02:
for untruthfulness.

[02:00:32] Speaker 01:
That's right.

[02:00:32] Speaker 01:
I think that's exactly the point.

[02:00:34] Speaker 01:
If he's talking about his character for truthfulness or untruthfulness, that is trying the case.

[02:00:41] Speaker 02:
There's a balance going that has to be undertaken here.

[02:00:44] Speaker 02:
And it's a very difficult balance in this context.

[02:00:48] Speaker 02:
And we certainly want to make sure that the criminal trial process and its integrity and its truth-finding function are protected.

[02:00:59] Speaker 02:
We've got to use a careful scalpel here and not step into really sort of skewing the political arena, don't we?

[02:01:09] Speaker 01:
I agree with that.

[02:01:10] Speaker 01:
But I think the order, as properly interpreted, strikes the appropriate balance.

[02:01:14] Speaker 01:
It leaves an ample room to respond to these things, to say that these things are untrue, to say what defendants in every case.

[02:01:20] Speaker 01:
And what is the strongest?

[02:01:21] Speaker 03:
I mean, a lot of the cases, as you're well aware, about

[02:01:25] Speaker 03:
The interests in a fair trial are in cases that are protecting criminal defendants against a prejudice process, bias in the process.

[02:01:35] Speaker 03:
There are some mostly dicta about the government's interest or the broader systemic interest in a fair trial.

[02:01:45] Speaker 03:
What's your strongest support for the order in terms of the government's interest?

[02:01:54] Speaker 01:
That's right.

[02:01:54] Speaker 01:
So the Sixth Amendment right is a right to a fair trial by an impartial jury.

[02:01:58] Speaker 01:
And as says in genteel, which of course was speech by a defense attorney, the state also has a right, an interest in a fair trial that needs to be protected by prohibiting prejudicial, extrajudicial speech.

[02:02:09] Speaker 01:
And that's consistent with how the court treats other Sixth Amendment rights.

[02:02:12] Speaker 01:
So, for example,

[02:02:12] Speaker 01:
The defendant has a right to a speedy trial.

[02:02:14] Speaker 01:
He doesn't have a right to delay his trial for as long as he wants because the government and the public also have an interest in a speedy trial, even though it's textually vested in the defendant.

[02:02:23] Speaker 01:
Likewise, the defendant has a right to a trial by jury, but he doesn't have a right to unilaterally demand a bench trial if the government, on behalf of the public, thinks a jury trial is more appropriate.

[02:02:31] Speaker 01:
So there's nothing unusual about saying that the right to an impartial jury means that the government also has a right to a fair trial.

[02:02:41] Speaker 03:
In the order, one of the

[02:02:43] Speaker 03:
one of the terms is political rival.

[02:02:45] Speaker 03:
How would you define that?

[02:02:46] Speaker 03:
Is that, I mean, now former Vice President Pence is no longer running, are there no political rivals any longer, or is a political rival, is it really a synonym for public figure, like Millie Barr, the like?

[02:03:02] Speaker 01:
I think the court intended it to be equivalent to people who are running against him.

[02:03:08] Speaker 01:
If the court felt like it was necessary to interpret political figure more broadly to encompass people like the former attorney general, former joint chiefs of staff, we would understand that, I think, could be a permissible gloss if necessary to make this order sufficiently narrow.

[02:03:25] Speaker 01:
But I think what the district court intended was to refer to people who are running against him.

[02:03:30] Speaker 01:
If I may make just a couple... Let me just ask one more thing.

[02:03:35] Speaker 03:
You had, I believe when you sought the order that's before us, we'd also ask the district court to amend the conditions of release.

[02:03:48] Speaker 03:
with similar terminology and the district court denied that.

[02:03:51] Speaker 03:
What's at stake as between putting terms like this in conditions of release and doing an order under rule 57?

[02:04:01] Speaker 01:
So two thoughts on that one.

[02:04:03] Speaker 01:
The first,

[02:04:04] Speaker 01:
which I hope is not too tangential to your question, but I do think my friend's concession that these sorts of restrictions included on contacting witnesses and other portions of the Bill Reform Act are consistent with the First Amendment, I think is a fatal concession to their whole legal standard.

[02:04:19] Speaker 01:
I mean, if it if it's true that a defendant is

[02:04:23] Speaker 01:
consistent with the First Amendment can be restricted from communicating with witnesses, associating with other people, just on the standard of reasonable assurance of the safety of the community.

[02:04:33] Speaker 01:
I think it follows from that that they're clear and present danger tests and their demand for

[02:04:36] Speaker 01:
evidence proving its imminence can't be right.

[02:04:40] Speaker 03:
What's at stake in doing it under... But don't individual terms that are imposed under the bail reform act also receive constitutional scrutiny?

[02:04:48] Speaker 01:
Constitutional scrutiny, but the test is, you know, will this reasonably assure their appearance at trial of the safety of any person or of the community?

[02:04:58] Speaker 01:
It's not.

[02:05:00] Speaker 01:
Is this is there compelling evidence that clearing from present danger?

[02:05:03] Speaker 00:
Well, that's the statutory test.

[02:05:05] Speaker 00:
We don't really know what the First Amendment test is, right?

[02:05:07] Speaker 00:
I don't think we've been cited cases that involve challenge to the bail condition.

[02:05:11] Speaker 00:
Is that right?

[02:05:11] Speaker 01:
Well, that's right, Your Honor.

[02:05:13] Speaker 01:
But I think it would be quite extraordinary to suggest that his position here somehow would

[02:05:18] Speaker 01:
Well, I think his position here, if carried to its logical conclusion, would necessarily cast doubt on the constitutionality of all of these routinely imposed provisions of the Bail Reform Act when courts have held those for years.

[02:05:31] Speaker 03:
I think it would have to be a constitutionality.

[02:05:35] Speaker 03:
Isn't that what Salerno did?

[02:05:37] Speaker 03:
Yes.

[02:05:38] Speaker 03:
And so something more fulsome speech restriction would have to be looked at under

[02:05:43] Speaker 03:
under the Constitution.

[02:05:45] Speaker 03:
Well, it'd have to be, certainly have to be looked at.

[02:05:47] Speaker 03:
No one.

[02:05:47] Speaker 03:
And it wouldn't be whether it would reasonably assure their appearance at trial.

[02:05:51] Speaker 01:
I think it would.

[02:05:52] Speaker 01:
I think these sorts of restrictions are imposed all the time.

[02:05:55] Speaker 01:
Don't contact this particular person.

[02:05:57] Speaker 01:
Don't, you know, post the witness list on social media.

[02:06:01] Speaker 01:
These are done if they reasonably assure the safety of another person or the appearance of the person.

[02:06:06] Speaker 01:
And I don't think any court has really cast doubt on their constitutionality.

[02:06:11] Speaker 03:
Um, going back to the question, but yeah, you had, you had been more broadly responding to the question that I asked about.

[02:06:16] Speaker 03:
So what's at stake, whether it's a rule 57 order or for a condition of pretrial release.

[02:06:21] Speaker 01:
That's right.

[02:06:21] Speaker 01:
So, so, um, we requested modification of the bail conditions, uh, in response to the motion to stay the district court denied on procedural grounds without prejudice.

[02:06:29] Speaker 01:
It may well be that at some point in the future, uh, either we or the district court find it necessary to also modify conditions of release.

[02:06:36] Speaker 01:
The remedies that are available are a little bit different.

[02:06:39] Speaker 01:
The procedures are a little bit different.

[02:06:40] Speaker 01:
Here there would have to be a show cause hearing if there's a violation, proof of willful violation for criminal contempt.

[02:06:49] Speaker 01:
So the mechanisms are slightly different, the standards are slightly different, but I don't think the constitutional analysis is any different.

[02:06:56] Speaker 03:
So the show cause hearing and proof of

[02:07:01] Speaker 03:
state of mind for violation of the rule 57 order?

[02:07:05] Speaker 03:
That's right.

[02:07:05] Speaker 03:
And for revocation of bail or release?

[02:07:11] Speaker 01:
Be clear in convincing evidence of a violation of a condition.

[02:07:16] Speaker 01:
So not a ton of daylight between those, but just a slightly different standard.

[02:07:24] Speaker 02:
You rely on the Gentile case from the Supreme Court.

[02:07:34] Speaker 02:
But your friend on the other side makes a quite relevant point that an awful lot of the language in there and analysis was focused on the fact that it was counsel.

[02:07:45] Speaker 02:
Attorneys choose their profession.

[02:07:47] Speaker 02:
They take oaths.

[02:07:47] Speaker 02:
They are officers of the court.

[02:07:50] Speaker 02:
I don't know of anybody who chooses to be

[02:07:53] Speaker 02:
a criminal defendant.

[02:07:56] Speaker 02:
And we have, as part of our criminal trial process, very robust protections for criminal defendants.

[02:08:04] Speaker 02:
And it's true, most criminal defendants, on the advice of counsel, say nothing publicly.

[02:08:12] Speaker 02:
But if a criminal defendant wishes to speak, why would the genteel balance that was struck there apply

[02:08:24] Speaker 02:
specifically to criminal defendants who really have a special status, a special protected status and their ability to do, to resist the government's action against them.

[02:08:45] Speaker 01:
So I think Gentile, as I think Judge Garcia was mentioning, when I was colloquially with my friend, really clarifies that what the relevant distinction is, is trial participants on the one hand, strangers to the litigation on the other, and that draws on Shepard, which lists

[02:08:59] Speaker 01:
trial participants, including the accused, alongside defense counsel as people whose speech can be restricted if it poses substantial likelihood of material prejudice to the proceedings.

[02:09:08] Speaker 01:
In Gentile, I think it was important to the court to explain why an attorney also was subject to those same restrictions.

[02:09:15] Speaker 01:
It might not be obvious to the lay reader why an attorney can be prohibited from making certain extraditional statements.

[02:09:23] Speaker 01:
I think

[02:09:24] Speaker 01:
The justification for why a defendant who is charged by the grand jury with committing felony is subject to similar or comparable restrictions, I think is almost more self-evident.

[02:09:34] Speaker 00:
As Salerno said, criminal defendants are routinely subject to... If I may, I think part of the question was specifically about Gentile's emphasis on the history of regulation of attorney speech.

[02:09:45] Speaker 00:
Are you saying that there's a similar tradition and history of the regulation of criminal defendant speech to that same degree?

[02:09:53] Speaker 00:
I think it's... Or is it just the other pieces of the opinion?

[02:09:57] Speaker 01:
No, so I think why Genteel included a long discussion of the historic regulation of attorneys has to do with the fact that they needed a justification to help explain why attorneys who at first blush might seem like they have more speech rights than other trial participants are in fact equal to other trial participants.

[02:10:18] Speaker 01:
Seattle Times, I think, already illustrates that a party to the litigation, even a newspaper, can be restricted from revealing comments or revealing any information they've received in the course of the litigation.

[02:10:32] Speaker 01:
And so yes, I do think there is a long history of defendants being subject to restraints on their liberty as a result of the indictment.

[02:10:41] Speaker 03:
But the Seattle Times, that interest is taken care of by a separate order in this case also, right?

[02:10:46] Speaker 03:
Yes, a protective order, yes.

[02:10:47] Speaker 03:
Yes, so that's not

[02:10:49] Speaker 03:
really direct support for this kind of order?

[02:10:53] Speaker 01:
It's important because Seattle Times says specifically that when it's even a civil litigant who is a newspaper who comes in with information through the court proceedings, then the standard is not kind of the Nebraska press standard.

[02:11:09] Speaker 01:
It's not clear and present danger.

[02:11:10] Speaker 01:
It's something lower.

[02:11:12] Speaker 01:
In that case, just good cause.

[02:11:14] Speaker 02:
Why shouldn't there be three categories?

[02:11:18] Speaker 02:
those outside the trial, for media, but could be other commenters, participants in the criminal defendant.

[02:11:30] Speaker 02:
Why doesn't our history of allowing criminal defendants to vigorously, and equipping them to vigorously defend against the government warrant, I don't think there's any history of regulation,

[02:11:49] Speaker 02:
Why doesn't that require something more exacting than the genteel test?

[02:11:55] Speaker 02:
Maybe not clear and present danger, but as I asked your friend on the other side, is there anything between genteel and clear and present danger that would be appropriate in your view, or is it genteel?

[02:12:10] Speaker 01:
We think the genteel standard applies, certainly, and the idea that

[02:12:15] Speaker 01:
defendants have kind of a uniquely expanded set of rights as compared to other trial participants.

[02:12:20] Speaker 01:
I think it's clearly contrary to the long history of making them subject to imprisonment or being held in detention pre-trial, all sorts of restrictions.

[02:12:35] Speaker 02:
Being detained requires a showing, a hard actual showing of actual risk of flight or threat to public safety.

[02:12:45] Speaker 02:
We're now talking about a type of order that doesn't require immediate facts to issue.

[02:12:52] Speaker 02:
That's clear from Nebraska.

[02:12:57] Speaker 02:
Common wisdom and judgment can be part of the analysis of what's going on in the world.

[02:13:02] Speaker 02:
And we live in a free society where it's incredibly hard for government to lock a citizen up.

[02:13:13] Speaker 02:
has to be, because that's the first tool of oppressive governments.

[02:13:17] Speaker 02:
And so, to be clear, they need to do it sometimes, and it can be done.

[02:13:22] Speaker 02:
But we have set up a lot of, you know, pro-defendants, make it really hard for the government requirements, because we don't want to be like other countries.

[02:13:31] Speaker 02:
And I'm asking is why that wouldn't include allowing a criminal defendant, for example, to publicly say,

[02:13:44] Speaker 02:
That person who just had a press conference denouncing me is a liar.

[02:13:50] Speaker 01:
So my reference to pre-trial detention was only to illustrate kind of the most extreme.

[02:13:56] Speaker 01:
But again, if you look at the Bail Reform Act, which I think... The what?

[02:14:00] Speaker 01:
The Bail Reform Act, which encompasses a number of provisions that had preceded that under the court's inherent power, defendants can be made to seek a job, commence an education, have a curfew.

[02:14:12] Speaker 01:
These are all standards that couldn't possibly be imposed on a third party to the litigation based on a similar showing.

[02:14:17] Speaker 01:
They're imposed because, as a result of the operation of the criminal justice system and the indictment, a defendant's... Well, and we haven't seen First Amendment challenges to those, but here we have a First Amendment challenge that we've got to grapple with.

[02:14:29] Speaker 01:
Well, I think I would sort of push back on the notion that all of the provisions of the Bail Reform Act are violative of the First Amendment... I'm not saying they are.

[02:14:37] Speaker 02:
I'm just saying that we have a particular...

[02:14:40] Speaker 02:
restriction here.

[02:14:41] Speaker 01:
Yes.

[02:14:41] Speaker 02:
And so I guess a particular challenge that we have to resolve.

[02:14:44] Speaker 02:
And so saying a statute lets you do lots of things is not so much an answer to my constitutional question.

[02:14:50] Speaker 01:
Well, I was trying to answer in the context of the historical.

[02:14:53] Speaker 01:
This is analogous to the analysis in genteel about the historical practice of regulating attorneys.

[02:15:00] Speaker 01:
There's also a similar historical practice about regulating the speech and association rights of defendants that has never been thought to violate the First Amendment.

[02:15:08] Speaker 01:
So that's why I think as Brown explained.

[02:15:11] Speaker 01:
Do you have no backup higher standard that you would propose?

[02:15:15] Speaker 01:
Well, I think because clear and present danger, as you mentioned in the colloquy with my friend, it's not kind of a clear doctrinal test.

[02:15:23] Speaker 01:
It's meant to get at the eminence and the significance of the threat.

[02:15:28] Speaker 01:
You see in the Levine case in the Ninth Circuit, I can't remember the exact wording, but it's something along the lines of significant and immediate, which is the standard that actually the district court here found.

[02:15:38] Speaker 01:
So I think conceivably you could articulate a standard that was somewhere in between, but because the clear and present danger standard is sort of a malleable one that doesn't dictate a doctrinal test, I don't know that that's necessary.

[02:15:52] Speaker 01:
But our view is certainly clear and present danger, excuse me, clear and present danger is wrong.

[02:15:56] Speaker 01:
Substantial likelihood of material prejudice is incorrect.

[02:16:02] Speaker 02:
Thank you very much.

[02:16:03] Speaker 02:
We appreciate your extra time.

[02:16:08] Speaker 02:
All right, sorry, Mr. Sauer, we will give you four minutes for rebuttal.

[02:16:12] Speaker 02:
Okay, do you want to stand up in case my colleagues have any questions?

[02:16:16] Speaker 02:
Do you have any more questions?

[02:16:19] Speaker 02:
All right, thank you very much.

[02:16:21] Speaker 02:
With that, thanks to council for your very helpful presentations and your patience with us.

[02:16:26] Speaker 02:
The case is submitted.