After clash with prosecutor, judge reserves ruling on restricting Trump’s rhetoric about agents’ classified documents search

25/06/2024

In this handout photo provided by the U.S. Department of Justice, stacks of boxes can be observed in a bathroom and shower in the Lake Room at former President Donald Trump's Mar-a-Lago estate in Palm Beach, Florida.

FORT PIERCE, Fla. — A testy exchange Monday between a skeptical U.S. District Judge Aileen Cannon and one of special counsel Jack Smith’s prosecutors led to an apology for unprofessional conduct by the lawyer as he sought to persuade the court to restrain Donald Trump from making inflammatory statements against federal agents in the government’s classified documents case against the former president.

Prosecutor David Harbach argued that Trump’s recent social media comments about the FBI’s search last year of his Mar-a-Lago estate were “way out of bounds” and were “nothing like speech that should be protected by the First Amendment.” Trump had said the agents were authorized to use deadly force during the search for classified documents and raised the specter that they would do harm to his family.

But Cannon suggested that the government’s request for proposed restrictions on Trump were vague and she struggled to persuade Harbach that he needed to be more specific. In its request to the court to modify Trump’s bail conditions, the government stopped short of seeking an actual gag order, suggesting instead that the court is empowered to craft a remedy.

Cannon said that despite 11 government exhibits in her possession, she did not see direct evidence of Trump’s angry statements about the search — characterized by the defense as a “raid” — that would pose a safety risk.

“There still needs to be a factual connection between A and B,” Cannon said of forming an evidentiary link between Trump’s comments and potential threats.

Harbach, sounding irritated, said he hadn’t gotten to all of this examples. That prompted Cannon to tell Harbach that she did not “appreciate” his tone. “We have been here before,” she told the prosecutor, referring to a prior episode in open court. If he could not change his approach, she suggested that a colleague might take his place presenting the government’s case.

Harbach, though, continued with a more subdued presentation.

“I just want to apologize about earlier,” he said before taking his seat. “I didn’t mean to be unprofessional. I’m sorry about that.”

The defense, meanwhile, took the opportunity to defend Trump’s language.

Todd Blanche, Trump’s lead attorney, said that prosecutors were trying to set a “dangerous precedent” by seeking to change the former president’s conditions of release. Blanche also seized upon what he called the vagueness of the government’s proposal for controlling the statements of Trump and his supporters.

“Steve Bannon making a comment is potentially the kind of thing that could send President Trump to jail,” Blanche said, referring to the former Trump White House aide.

Cannon did not rule on the government’s request. She set a Wednesday deadline for both sides to submit supplementary evidence.

Over the weekend, the government had filed a sharply worded supplemental argument to a previous one seeking a limited gag order from the court, reiterating that Trump’s statements placed the agents and even their families in danger.

“In late May 2024, defendant Donald J. Trump made a series of false and inflammatory public statements about the law enforcement professionals who conducted the court-authorized search at Mar-a-Lago, telling his audience that the FBI was out to kill him and his family,” wrote prosecutors led by Jay Bratt. “Trump knew that this was false, and he intended that his comments would inflame his listeners; indeed, that was the whole purpose. Comments like those create an immediate threat to the safety of law enforcement professionals — men and women who dedicate themselves to enforcing the law and protecting the American public every day, and who are entitled to do their work without fear of violent retribution.”

“Rather than address the risk of harm that his recent false statements created, Trump’s opposition (to a gag order) focuses on his political campaign and the timing of campaign events,” the prosecutors wrote. “But the Government has absolutely no interest in those matters. None.”

The prosecutors argued that the restraint they seek “is exceedingly narrow, focused and fully consistent with the First Amendment.”

“This is a pending criminal case, and ‘like any other criminal defendant, Mr. Trump does not have an unlimited right’ to engage in speech that poses a risk to witnesses and threatens the integrity of the proceedings,” the prosecutors added.

In their own filings, Trump’s lawyers have called the bid for restraining Trump’s rhetoric as a tactic to disrupt his reelection bid.

Since the indictment was handed up in June of last year, Trump’s defense lawyers have filed multiple motions not only to dismiss the case but to delay it until after the presidential election. While many judges expedite decision-making on most dismissal criminal cases, Cannon has delayed rulings on many of the filings tendered by Trump, holding hearings on many of them. This has raised a chorus of objections from legal community critics who assert she is “slow-walking” the case to accommodate the former president, who did not appear at last Friday’s hearing and is not expected to be in court Monday or Tuesday, just days ahead of his scheduled nationally televised debate against President Joe Biden.

Special counsel funding

Earlier Monday, the judge at Trump team’s request focused on the funding of the special counsel’s office in the presence of Smith, who attended the hearing. Trump and employee/co-defendants Waltine Nauta and Carlos De Oliveira did not appear in court and were not required by the judge to be there. All three have pleaded not guilty in a case that alleges Trump illegally retained classified documents after he left the White House in 2021 and sought to block government efforts to retrieve them from Mar-a-Lago.

Cannon on Monday pressed the government with detailed questions about how the special counsel’s office is funded.

Informed by prosecutor James Pearce that there is no cap on funding, she said she believes there is “a separation of powers concern” between the executive, which oversees the Justice Department, and Congress, which appropriates money to run the government.

Pearce responded that if the judge found that Smith’s office was not properly funded, the Department of Justice would find the money to do so from other sources.

“The Department of Justice, at least in the 2023 appropriations cycle, (has) over $1 billion,” Pearce said, adding that the department is maintaining a “full commitment” to fund the prosecution of Trump.

For his part, defense attorney Emil Bove said Congress needs to provide “more oversight” over the appointment and conduct of special counsels, asserting there are “extraordinary things” occurring in the documents case against Trump.

Asked by the judge what “injury” might befall his client if the case was not dismissed, Bove replied: “There is a liberty threat at issue here.”

Cannon did not immediately rule on the defense motion to dismiss over the special counsel challenges.

Defense lawyers, by raising questions about the validity of Smith’s appointment, have hit a rhetorical sweet spot for consuming more time to delay a trial once scheduled for May 20 but now on hold. The legal history of presidential administrations appointing special counsels dates back to 1875 and the administration of Ulysses S. Grant. In the succeeding decades, the legal language for authorizing them has varied about as much as the reasons for naming them.

The controversies, among others, have included scandals over whiskey tax revenue, government petroleum reserves, the Watergate burglary that led to the end of Richard Nixon’s presidency, the illegal arms sales case known as Iran-Contra during Ronald Reagan’s presidency, and a land deal inquiry that morphed into the disclosure and investigation of a sex scandal involving President Bill Clinton.

More recently, special counsels have probed Russian involvement in the 2016 presidential election, conducted an investigation of that investigation by Robert Mueller III, and examined the handling of classified documents by President Joe Biden as well as the illegal activities of his son, Hunter.

During arguments before Cannon on Friday, Trump’s defense lawyers aided by outside attorneys invited by the judge — known as friends of the court — jumped at the chance to pick at the arcane laws and regulations authorizing the special counsel appointments over the years.

The judge noted that other courts had established precedents that support the naming of Smith by Garland.

“What do you make of this potentially tolerated practice?” Cannon asked Gene Schaerr, an outside attorney who represented two former Republican attorneys general including Edwin Meese, who served Ronald Reagan.

Schaerr suggested that those including judges who green-lighted previous special counsel appointments had erred.

“It’s an imperfect world, and people make mistakes,” he said. “And just because other people have made mistakes doesn’t mean this court should too.”

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