Trump secret documents case: Judge Aileen Cannon questions special counsel funding, prosecutors push for silence order

The judge in Donald Trump’s federal classified documents case did not rule on Monday on special counsel Jack Smith’s request to impose a limited silence order on the former president’s rhetoric toward law enforcement agencies involved in the case, but he expressed skepticism about prosecutors’ arguments.

Prosecutors argued that an order of limited silence was necessary to prevent the former president from inciting a “brutal act” against law enforcement officials, saying he was aware of the “predictable reaction of some of his supporters” when he made false statements about the August FBI search of Mar- a-Lago in 2022 – including the campaign’s statement that President Joe Biden is “locked down.” and loaded, ready to take me away and I put my family in danger.”

Trump’s lead defense attorney, Todd Blanche, argued that Trump’s remarks did not pose an immediate and foreseeable threat to law enforcement and said that a defendant changing his bail over what is considered political speech would set a “dangerous” precedent.

Blanche argued that Trump’s comments amounted to “criticism of his political rival … Joe Biden and his Department of Justice” and that any modification to his bail would have a “chilling effect on President Trump.”

Attorney David Harbach responded sharply, saying there was nothing in Trump’s remarks that could be considered campaign speech.

Could Trump “use his platform to improve his chances of becoming president? Give it a rest! But you’re not allowed to say things like that” that are “so patently false,” Harbach said.

“Lies. Lies about the FBI intending to use violence against your family. We think it’s definitely exaggerated,” he said.

Judge Aileen Cannon called on the prosecutor to present evidence and justify the constitutionality of the proposed silence order.

“The most important thing is that it talks about an event that is central to this case in a completely misleading way,” Harbach argued. “The government cannot imagine any possible reason why Trump would say something so false … and encourage retaliatory violence.”

“Where in the attachments do you see a call to violence?” Cannon responded after criticizing prosecutors for failing to present sufficient evidence of a pattern of conduct from Trump’s other criminal and civil cases.

Last year, Trump pleaded not guilty to 40 criminal charges related to his handling of classified materials after leaving the White House after prosecutors said he repeatedly refused to return hundreds of documents containing classified information and took steps to thwart government efforts to obtain them. recovery . Trump has denied all allegations and denounced the investigation as a political witch hunt.

Cannon pressed Harbarch, arguing that modifying Trump’s terms of release – rather than a stand-alone silence order, as in the former president’s federal election interference case – would avoid First Amendment issues.

“Do conditions of release still have to be consistent with the Constitution?” Cannon asked. “The First Amendment is in the Constitution.”

Cannon also expressed skepticism about the impact of Trump’s statements on law enforcement officials, emphasizing that any public filings included redacting the names and identifying information of law enforcement officials. Harbach responded by arguing that some agents had previously been irresponsible and called Trump’s recent comments “beyond irresponsible.”

Harbach argued that between now and the trial there is a “great danger… that there will be some act of violence” because of Trump’s behavior, and said Cannon must impose restrictions on Trump’s speech to protect the integrity of the proceedings. When Cannon suggested waiting until after the trial to impose any restrictions on speech, Harbach argued that immediate action was necessary.

“That die has already been cast … by the defendant’s conduct,” Harbach said.

The first hour of the hearing became contentious at times as Cannon pressed Harbach for evidence and details.

“I don’t like your tone,” Cannon told Harbach at one point. “I always expect decency in this courtroom.”

“I didn’t mean to be unprofessional. I’m sorry about that,” Harbach said later

The special counsel’s request for a silence order follows a month of mounting rhetoric from Trump about federal agents’ policy regarding the use of force during an August 2022 search of Trump’s Mar-a-Lago estate in search of secret documents.

In testimony last month, Smith argued that Trump’s statements that law enforcement officials “were complicit in a conspiracy to assassinate him” were intentionally false and misleading and “targeted FBI agents.”

Trump’s defense attorneys responded to the motion by maintaining that prosecutors failed to show that Trump’s statements resulted in any material threats or harassment against law enforcement.

Reiterating the former president’s defense of an order of limited silence in his New York criminal case involving silence, Trump’s lawyers wrote that the proposed order of silence – which they describe as “a shocking display of undue pressure and disregard for the Constitution” – amounts to political interference by limiting Trump’s appearances ahead of the presidential debate this week and the Republican National Convention in July.

“(T)“This motion constitutes a naked attempt to impose totalitarian censorship of key political speech under the threat of imprisonment, in a clear attempt to silence President Trump’s arguments to the American people about the outrageous nature of this investigation and prosecution,” defense lawyers said in a June ruling.

The restraining order hearing was a continuation of a Monday morning Friday hearing during which defense attorneys sought to have the documents case dismissed on the grounds that Smith had been wrongfully appointed as special counsel.

Cannon will resume hearings on Tuesday – first with a sealed hearing and then a public hearing on the use of evidence obtained during the Mar-a-Lago search.

“False and extremely dangerous”

Trump’s recent public statements regarding the Mar-a-Lago search, during which agents found more than 100 documents with secret markings, underscored the use of force policy in place during the raid, which Trump has repeatedly linked to the “Biden Department of Justice.” “

Prosecutors argue that law enforcement used the Department of Justice’s standard use-of-force policy, which allows the use of force “when an officer reasonably believes that the victim of the use of force poses an imminent danger of death or serious physical injury” to the officer or another person.

In his documents, Smith also emphasized that the search was planned during the off-season when Trump and his family were not at Mar-a-Lago, and that it was conducted in cooperation with the Secret Service and Mar-a-Lago staff – and that Trump’s lawyer was notified before the search.

In a rare public rebuke, the FBI issued a statement last month confirming that law enforcement used standard protocols for using lethal force during the raid, adding that: “No one ordered additional steps and there was no departure from the norm in this matter.”

Attorney General Merrick Garland also called allegations that the Justice Department authorized Trump’s assassination as “false and extremely dangerous,” and added that the same policy was used in the search of President Biden’s home as part of an investigation into his storage of secret documents.

Threats against law enforcement

Prosecutors emphasized that the proposed gag order against Trump would be strictly limited – limited to prohibiting Trump from falsely talking about “FBI agents intent on murdering him and his family” – to protect the safety of law enforcement officers.

To illustrate the threat to law enforcement officials, prosecutors alleged that Trump’s rhetoric encouraged a supporter to threaten an FBI agent tied to the Hunter Biden case, including threatening that supporters would “hunt you down” and “kill you” if Trump did not win the election in 2024.

Prosecutors also argued that a Trump supporter attacked the FBI’s Cincinnati field office with an AR-15 and a nail gun in August 2022, following the Mar-a-Lago raid – an attack that prosecutors said was partly sparked by Trump’s comments on social media media after the attack.

Defense lawyers wrote that Trump made a “constitutionally protected campaign speech” and that prosecutors failed to prove that Trump’s statements directly resulted in threats or harassment.

In addition to highlighting two examples of threats or violence, prosecutors argued broadly that Trump’s inflammatory language regarding the raid created a “flammable atmosphere” that posed an imminent risk to law enforcement.

“No court will tolerate another defendant who willfully poses such a direct threat to the safety of law enforcement, and the Court should not wait for a tragic event to take action in this case,” prosecutors said in a motion last week.

Trump’s other gag orders

Trump has generally failed to challenge silence orders imposed in his other criminal and civil cases, sometimes securing stays of the orders but not invalidating those orders as unconstitutional.

The New York Supreme Court refused to uphold Trump’s challenge to a silence order in Trump’s civil fraud case, which prohibited Trump from speaking about court personnel.

Last week, the same court refused to immediately hear Trump’s challenge to the injunction in his New York hush money case – which prohibits Trump from making statements about jurors, witnesses and others involved in the case – after determining that there was “no significant constitutional issue is directly related” to Trump’s challenge. Last month, a mid-level appeals court found that the silence order “appropriately balanced petitioner’s First Amendment rights to the court’s historic commitment to ensuring the fair administration of justice.”

Trump also unsuccessfully challenged a silence order in his federal election interference case that barred statements about prosecutors other than Smith, witnesses and court staff.

“Given the evidence in this case, the court had a duty to act proactively to prevent the creation of an atmosphere of fear or intimidation intended to prevent litigants and staff from performing their functions in the trial,” the Court of Appeals panel judges in Washington wrote last year decision upholding the silence order.