Prosecutors in the case have argued that courts have wide discretion to limit the statements made by any criminal defendant, even one running for president. They say that the gag order in particular was needed because of Mr. Trump’s “near daily” attacks against Mr. Smith, Judge Chutkan and potential witnesses in the case, including Mr. Pence, former Attorney General William P. Barr and Gen. Mark A. Milley, the former chairman of the Joint Chiefs of Staff.
Among other things, the judges pressed Mr. Vandevender about whether there was a distinction between threats and harassment of prosecutors, versus threats to witnesses or jurors. In particular, they questioned whether inflammatory comments about prosecutors, which the gag order bars, crossed the First Amendment line.
Mr. Vandevender argued that if Mr. Trump actually thought individual prosecutors were politically biased, he should make a motion in court raising those concerns. But multiple judges questioned whether that part of the order went too far, including raising doubt about whether Mr. Smith would be dissuaded from continuing to pursue the case by verbal attacks.
It is not clear how quickly the three-judge panel of the appeals court will decide on whether to rescind the gag order or keep it in place as the case moves toward its trial date. One side or the other could also appeal the eventual decision to the Supreme Court.
If the order is upheld and goes back into effect, Judge Chutkan may confront an even tougher issue: how to enforce the decree if Mr. Trump violates it. A violation of a gag order is treated as a matter of contempt of court, which could result in a reprimand, a fine or imprisonment. But how that would play out is complicated.