Lawyers for former US President Donald Trump presented oral arguments before a DC appeals court Monday, arguing that the gag order prohibiting Trump from disparaging participants in his election interference criminal case violates the former President’s right to free speech. A three-member panel of the US Court of Appeals for the District of Columbia Circuit weighed Donald Trump’s First Amendment rights with the interest of a fair and impartial trial.

US District Judge Tanya Chutkan in Washington, who oversees Trump’s election interference criminal case, set the gag order after she determined Trump’s campaign speeches and social media posts could influence witnesses and lead to threats against lawyers and other public officials. The order restricts his speech about potential witnesses, prosecutors, and court staff.

In their appellee brief, prosecutors highlighted one Trump comment, “If you go after me, I’m coming after you!,” which inspired one of Trump’s followers to call the district court’s chambers, making racial slurs and adding, “If Trump doesn’t get elected in 2024, we are coming to kill you … you will be targeted personally, publicly, your family, all of it.”

Trump lawyer D. John Sauer said in oral arguments that Trump’s recent remarks created no clear and present danger and that the gag order “sets a terrible precedent on future restrictions on core political speech.”  Sauer said a “heckler’s veto,” which prevents someone from speaking in a public forum because of their views will react violently, is unjustified. The prosecutor, Cecil VanDevender, instead urged the panel to reject Trump’s claims that the First Amendment protects his ability to assail witnesses.

Judge Cornelia Pillard firmly questioned Trump’s attorney, “I don’t hear you giving any weight to the interests in a fair trial; trial participants may be discouraged by threats to them or their family.” The judges also grilled the government lawyer about whether the gag order was too broad since Trump is the forerunner during a presidential election. VanDevender cited examples of the type of hypothetical comments that are allowed, such as “This is politically motivated prosecution brought by my political opponent.”

The judges indicated that they may narrow the scope of the gag order. However, they seemed to find a sufficient basis to keep some form of the restriction. The Trump team has foreshadowed that they may appeal to the Supreme Court if the ruling is upheld.

The criminal case goes to trial in March 2024, amid Trump’s likely run against Biden in the November 2024 presidential election. The former president was accused of defrauding the US and obstructing Congress by using claims of election fraud to impede the counting of votes and certification of results in the 2020 presidential election. Trump has pleaded not guilty and has accused Biden’s administration of weaponizing the US legal system against him.