Things got a little heated yesterday in the Washington D.C. Court of appeals when the Orangeutan’s slippery mouthpiece John Sauer stonewalled the court and refused to give a straight answer to a hypothetical question posed by Judge Patricia Millett seeking to define what, if any, boundaries Sauer would consider appropriate regarding Trump’s obdurate attempts to interfere with witnesses in his trial for attempting to overturn the 2020 election by dispatching a violent mob against the Capitol.
“Sauer argued that the terms of the gag order, first imposed by District Judge Tanya Chutkan, went overbroad and were a violation of the former president’s constitutional rights, claiming that Trump’s arguments did not constitute a “clear and present danger.”
But Millett challenged Sauer, saying that under case law there is a distinction between participants and outsiders, and wouldn’t the former have a stronger standard? Sauer danced around the question, and a frustrated Millett said, “You can’t give me anything.”
She then pointed out that even stipulating to Sauer’s view, there is extensive Supreme Court law saying that, “Clear and present danger isn’t meant to be a mechanical process, it’s a balancing test” between the defendant’s rights and the risks of their conduct.
Later in the questioning, Pillard asked Sauer to distinguish whether, if it’s permissible to punish Trump from calling a witness on the phone and telling them, “I know you’re a patriot, and patriots don’t talk to prosecutors,” it would be permissible to punish Trump for saying the exact same thing on social media or at a public rally.
Sauer dodged the question, insisting that Trump had not said any such thing, even as Pillard clarified that “it’s a hypothetical!”
He never did answer her question.
Former Obama solicitor general Neal Katyal and Bob Mueller wingman Andrew Weissmann think they are on to the game Sauer is playing and Katyal predicts limited success for the appeal.
“Katyal, who previously served as acting solicitor general for President Barack Obama, explained that he was constantly thinking throughout the hearing: “Mr. Trump’s lawyer, answer the question, answer the question.”
He explained that Judge Pillard spent 20 minutes just trying to get a single answer out of him, which is one of many reasons the arguments went beyond the typical 40-minute mark, lasting nearly two and a half hours. Katyal explained that such a timeline isn’t unheard of for that court because all of their cases end up being long, as the judges dive deep into the legal discussions.
As for Sauer, “he could not answer them,” Katyal said. “Trump’s lawyer basically took this kind of ‘go home or big’ approach, and he is going home, basically, at the end of this.”
But it was left to Weissmann on this panel discussion to really put this nut in its shell:
“If you think you are going to lose, and this proceeding is essentially stonewall here,” she said. “So, that there is no concessions that can be latched to go on to. But to give an example of what Neal is talking about in terms of the question that the court had that was really legitimate was to say, look, it’s a given that every defendant, when they are released, they are told do not commit a crime. That includes: Do not threaten a witness. That’s not a gag order. That’s just — you can’t commit a criminal act while on bail.”
Katyal thinks the court may trim at the edges of the gag order but nothing much beyond that.
Here’s the video: