In a closely watched case stemming from former President Donald Trump's attempts to overturn the 2020 election, a three-judge panel of the DC US Circuit Court of Appeals heard oral arguments on Monday regarding the restoration of a limited gag order. While the panel appears inclined to reinstate the order, they also expressed a desire to allow Trump more leeway to criticize special counsel Jack Smith.

Trump, who has pleaded not guilty to charges related to election subversion and obstructing the transfer of power, had argued that the gag order should be completely eliminated, claiming it violated his free speech rights in an unprecedented manner. However, none of the three judges on the panel embraced this argument.

During the hearing, the judges posed sharp questions to prosecutors as they sought to determine the boundaries between political campaign rhetoric and speech that undermines the legal process. Circuit Judge Patricia Millett stressed the need to protect the integrity of the criminal trial process while also being cautious not to interfere with the political arena.

The current limited gag order, issued by District Judge Tanya Chutkan, restricts Trump from directly attacking Smith, members of his team, court staff, or potential trial witnesses. However, Trump is allowed to criticize the Justice Department, maintain his innocence, and argue that the case is politically motivated.

The panel of appellate judges, all Democratic appointees, heard the case on an expedited schedule and is expected to issue a ruling soon, although the exact timing remains uncertain. Judge Millett repeatedly challenged Trump's attorney, arguing that there must be a distinction made between political speech and speech intended to subvert the legal process.

Trump's attorney, D. John Sauer, argued that existing restrictions on illegal speech for all criminal defendants, such as witness tampering, are sufficient to preserve the integrity of the case. He contended that the gag order encroaches upon Trump's core political speech.

However, Judge Millett countered, stating that labeling Trump's speech as "core political speech" presupposes that it is indeed political speech and not an attempt to corrupt the criminal justice process. She emphasized the need to strike a proper balance.

Later in the hearing, Judges Millett and Cornelia Pillard signaled that they believe the existing gag order could be loosened, allowing Trump to levy additional public attacks against Smith and his team, not because they find the attacks well-founded, but because they believe Trump should have the right to defend himself.

The judges also referenced the fact that Smith's name and the names of other prosecutors involved in the case are already part of the public record. They questioned whether a gag order should prevent Trump from mentioning the special counsel, given that most Americans are aware of the case in the context of it being initiated by Smith's team.

The current gag order prohibits Trump from making public statements that directly target Smith or his staff. Trump has frequently criticized Smith, calling him "deranged" and a "lunatic" in speeches and on social media.

Concerns were raised during the hearing about the potential for Trump to intimidate witnesses while campaigning for the 2024 GOP presidential nomination, highlighting Trump's past patterns of attempting to threaten, discredit, or manipulate witnesses through public rhetoric.

Prosecutors argued that Trump's public targeting of adversaries, including trial participants, poses a significant risk to the fairness and integrity of the proceedings. They emphasized the need to prevent Trump from potentially revealing personal information about jurors and causing his followers to launch similar attacks online.

The issue of online threats directed towards jurors may factor into the final decision of the judges regarding the gag order. Prosecutors contend that such threats could prejudice the jury in the case.

The panel of appellate judges will now consider the arguments presented during the hearing before issuing a ruling on the restoration and potential modification of the gag order in Trump's federal election subversion case.