Former President Donald Trump's lawyer seems to think only the broadest reading of First Amendment matters above all other laws when it comes to instituting gag orders against his client.
Former Acting U.S. Solicitor General Neal Katyal, in an appearance on MSNBC's "The Last Word" with Lawrence O'Donnell, laid into the lawyer representing the GOP frontrunner in the 2024 presidential race on his performance that seemed to argue that the First Amendment blocked the government from imposing any restrictions on a criminal defendant ahead of their trial.
"Here is how constitutional scholars do it: They don't do what Donald Trump's lawyer said today," Katyal said. "Trump's lawyer sounded like an anarchist First Amendment freak — like First Amendment over anything."
He continued: "That is not the law. It cannot be the law, for the reason that Judge [Patricia] Millett pointed out, which is, look, we need to have fair trials."
Katyal was criticizing the effort by Trump's attorney, John Sauer, who, when grilled over his argument to the gag order in Trump's D.C. federal criminal subversion case, should be lifted because it's too vague and unconstitutional.
“The order is unprecedented, and it sets a terrible precedent for future restrictions on core political speech,†he said before the three-judge appeals court panel, adding that it essentially creates a "heckler's veto" that could do harm in the future.
The attempt to depict the gag order as solely a silencing measure and nothing more misses the mark, according to Katyal.
"You can't just have a criminal defendant going in and threatening witnesses, threatening the prosecution, judges and then say 'Free speech! Free speech!' — That's insane," he said.
"So you balance the two things. Does free speech have an important role? Yeah, 100 percent. But it's not the only value."
The judges appeared to find the balance of crafting the language in the gag order that maintains the former president's rights to free speech while stumping on the campaign trail.
Katyal believes the prosecution was caught up in too much hypothetical that they didn't stay on message.
"They got so into the theory and the hypotheticals, they lost a little bit of just what this case is about... This case, Lawrence, is about a criminal defendant who has a history of threatening other people, including when on trial, so that's what the judge last week in Colorado found, it's a person who talks and double talks so that it's threats that -- if you just read the internal threat, it just doesn't seem like a threat."
He added: "You have to read it in context and Trump always has some sort of explanation, the way a mob boss does of how it's not actually a threat."
