Mar-a-Lago judge repeatedly belittles prosecutors

Left: Judge Aileen Cannon (U.S. District Court for the Southern District of Florida); Right: Special Prosecutor Jack Smith (AP Photo/J. Scott Applewhite, file)

A series of preliminary hearings into the Mar-a-Lago documents on Monday led to tense interactions between the court and two prosecutors – one of whom later issued a public apology.

Much of the day in a single-judge courthouse in Fort Pearce, Florida, was spent in oral arguments over a far-sighted motion filed by Donald Trump’s lawyers seeking to dismiss an indictment over how special counsel Jack Smith’s office was financed. The defense alleges that the funding mechanism is a violation of the Appropriations Clause.

While it is unlikely that the defense will secure a formal victory, the fact that the trial took place at all is a procedural victory for the 45th president in terms of the delay that results from numerous additional investigations – while waiving decisions in the case – consistently pushing back the trial date go back as far as the proceedings go. For now, the court itself has postponed the potential trial date indefinitely as U.S. District Judge Aileen Cannon grants a number of motions from both sides.

The court’s behavior at every stage of the prosecution aroused intense controversy. The manner in which Justice Department lawyers were dealt with on Monday is likely to further amplify such criticism in the future.

The crux of the defense appropriations argument is that Smith and his team are not truly independent when they rely on congressional funding and are overseen by the federal government.

Arguing for the government, U.S. Attorney James Pearce said Trump’s claims were much ado about nothing because special counsels have long been able to access funds appropriated by Congress, consistent with long-standing practice of the U.S. Department of Justice, according to courtroom reports by MSNBC personality. Katie Phang and Courthouse News Service reporter Erik Uebelacker.

In a statement that later turned out to be important, the Justice Department admitted that the special counsel had “unrestricted” resources, drawing on a permanent and existing funding source.

But the judge focused on the size of the spending – a step away from the defense’s actual argument about the primary source of funding – and apparently surprised the government prosecutor.

Pearce, pushing back, said he wasn’t sure whether current spending would be $5.9 million or $9 million, but offered to file a supplement with the court with precise details.

Cannon summarized the public nature of such documents and criticized the government for taking so long to submit reports.

But the attention to detail clearly hit a nerve.

Pearce again recused himself, saying he couldn’t think of any other instance where an inquiry into spending on individual items would be in any way relevant.

The judge began to comment on the special counsel’s “unlimited” expenses, raising concerns about “separation of powers” – when Pearce spoke again, saying that all the case law he was aware of said the court could only focus on the source of the funding and the purpose financing, or in other words: not the amount at all.

“Don’t interrupt me,” Cannon said.

Ultimately, the court refused to issue a ruling in this case.

This judgment stipulation was largely anticipated because the litigation is part and parcel of a defense motion aimed at the allegedly cumbersome hiring and financing of special counsel. Smith’s nomination hearing was held last week. Cannon had previously split the motion into two hearings, to be held on two different days.

More law and crime coverage: Jack Smith proves his legitimacy with bills on Bill Barr’s Bush-era special counsel nominations

Monday’s hearing schedule also includes an afternoon of oral argument on Smith’s request to modify the terms of Trump’s pretrial release by issuing a silence order. This conclusion came in light of defendant’s online claims that the FBI was authorized to use “lethal force” during the Mar-a-Lago raid.

In a recent filing, the special counsel criticized Trump for telling his online audience that “the FBI intended to kill him and his family.”

To hear what the government says, the court should prohibit further such statements because they “pose a significant, immediate and foreseeable threat to the law enforcement personnel involved in the case” and are not protected under the First Amendment.

During Monday’s second round, prosecutor David Harbach sided with the government.

The judge asked the prosecutor a series of questions aimed at determining how and why threats by others should or could be linked to the presumptive Republican presidential nominee. Often, the court’s questions arose immediately as the government lawyer answered an earlier question.

Ultimately, the pace seemed to frustrate Harbach.

During an exchange about the names of law enforcement witnesses, the lawyer said redactions alone were simply not enough.

“Mr. Harbach, I don’t like your tone,” Cannon said.

The judge then reminded the lawyer of the earlier tense exchange and the ensuing chat about propriety.

“I always expect decency in this courtroom,” Cannon continued the rebuke. “If you are unable to do so, I am sure one of your colleagues can take on the task of arguing this motion. Let’s reset.”

Harbach then issued a mea culpa for his tone.

“I just want to apologize for what happened earlier,” the lawyer told the judge, according to CNN. “I didn’t mean to be unprofessional. I’m sorry for this reason.”

As before, the second hearing also ended without a ruling by the adjudicating panel.

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