Washington – The federal judge overseeing special counsel Jack Smith's secret-documents case against former President Donald Trump has denied the case prosecutors' request that the court impose a gag order to certain public statements that they claimed posed a danger to law enforcement.
In an order issued Tuesday, Judge Aileen Cannon of Florida rejected Smith's motion to modify Trump's conditions of pretrial release to ban him from making comments “similar” to those he has made in recent weeks, in which Smith alleged that Trump “evaluated law enforcement officials involved in the investigation and jeopardized the prosecution of this case and the integrity of this proceeding.”
Cannon's brief said she denied the Justice Department's motion “without prejudice,” meaning Smith could potentially file another motion. The judge disagreed with the special counsel's handling of the request, writing that prosecutors did not meaningfully consult with Trump's defense team before filing the request, as required by local rules.
The special counsel filed his motion Friday evening after Trump's lawyers said they asked him to wait so the parties could discuss the case Monday. Cannon wrote that the prosecutors' handling of the proceedings was “completely lacking in substance and professional civility.”
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The move by federal prosecutors to limit Trump's public comments came after the former president made false claims that FBI agents were “authorized to shoot him” while executing a court-approved search warrant at his residence in August 2022 at Mar-a-Lago. During the search, agents recovered more than 100 documents with classified markings from the home as part of the federal investigation into the former president's handling of sensitive government documents.
Smith alleged Friday that Trump had “grossly distorted these standard practices by falsely characterizing them as a plan to kill him, his family, and U.S. Secret Service agents.” His social media posts and campaign emails on the subject, prosecutors wrote, “pose a significant, imminent and foreseeable danger to law enforcement.”
The special counsel did not provide details of any cases in which threats to law enforcement were related to Trump's latest comments. Instead, he argued that the former president's earlier speech had made threats to witnesses and pointed to a 2022 case in which an individual attacked an FBI field office in Ohio.
On Monday, Trump's team pushed back, calling Smith's motion “an extraordinary, unprecedented, and unconstitutional application of censorship” that “improperly targets President Trump's campaign speech while he is the leading candidate for president.”
Defense attorneys also disagreed with the way prosecutors went about filing their request, accusing them of filing it “hastily” on Friday evening, which violated local rules that obliged them to discuss the matter together.
“Under no circumstances can an email exchange initiated on a Friday evening at 5:30 p.m. constitute the type of transmission required by [the rules]Trump's lawyer wrote, pointing to a series of emails with prosecutors. In those emails, prosecutors countered that Trump's comment “necessitated an expedited relief request that could not wait until the weekend to file.”
Trump's defense team also asked Cannon to sanction prosecutors for the alleged rule violations.
The judge decided not to punish Smith's team on Tuesday, but rejected their requested gag order.
The special counsel's office declined to comment on the ruling.
The special counsel's Friday request came after Trump's comments about the subsequent search of his home recent unsealing of documents of the 2022 Mar-a-Lago search. Those documents include a use-of-force policy for FBI agents that prohibits the use of deadly force except when agents are in immediate danger. Justice Department prosecutors said the language was “standard and unacceptable” and argued that “the FBI took extraordinary care to execute the search warrant discreetly and without unnecessary confrontation.”
“As planned, the FBI executed the search warrant in a professional and cooperative manner, at a time when Trump and his family were not visiting the state,” Smith's team wrote Friday.
In a statement last week, the FBI said: “The FBI followed standard protocol in this search, as we do for all search warrants, which includes a standard policy statement limiting the use of deadly force. No one ordered additional steps to be taken and there was no deviation from the norm in this matter.”
The special counsel charged Trump with 40 counts in the Southern District of Florida, accusing him of illegally withholding national defense information from his time in the White House. He and two aides are also accused of obstructing the federal investigation.
All three have pleaded not guilty and denied doing anything wrong.
Earlier this month, Cannon postponed trial proceedings indefinitely, saying the parties needed to continue working through pretrial proceedings.
