In the classified documents case, Donald Trump’s lawyers are fighting special counsel Jack Smith’s attempt to modify the defendant’s release conditions — or, to impose a “gag order,” as the defense puts it.
There’s reason to think that U.S. District Judge Aileen Cannon will agree with Trump, though we might not know the answer for a while.
Smith raised the issue May 24, to combat Trump’s statements “falsely suggesting that they [federal law enforcement agents] were complicit in a plot to assassinate him” when they executed the Mar-a-Lago search warrant.
Smith raised the issue May 24, to combat Trump’s statements “falsely suggesting that they [federal law enforcement agents] were complicit in a plot to assassinate him” when they executed the Mar-a-Lago search warrant. Cannon chided Smith’s team for not properly conferring with the defense counsel in filing the motion, and the government tried again May 31.
“A condition of release that prohibits the defendant from making statements posing a significant, imminent, and foreseeable danger to law enforcement agents participating in the investigation and prosecution of this case is warranted and necessary here,” Smith’s team wrote.
In an opposition filing Friday, Trump’s lawyers cast the effort as “Jack Smith’s most recent shocking display of overreach and disregard for the Constitution,” writing that the special counsel had asked the court “to enter an unconstitutional gag order as one of the release conditions on the leading candidate in the 2024 presidential election.” More specifically, the former president’s lawyers wrote that the special counsel has “not submitted to the Court any evidence of threats or harassment resulting from President Trump’s protected speech.”
“Not a single FBI agent who participated in the raid submitted an affidavit, or even an argument, claiming that President Trump’s remarks put them at risk,” they added.
Of course, given Cannon’s handling of the case to date in ways that favor Trump, there isn’t a guaranteed way for the government to succeed in any motion. Cannon may agree that that lack of specificity is a problem against the backdrop of a First Amendment argument. Smith can file a reply to Trump’s opposition, ahead of a June 24 hearing on the matter. Such an affidavit may help to strengthen Smith’s motion. Of course, given Cannon’s handling of the case to date in ways that favor Trump, there isn’t a guaranteed way for the government to succeed in any motion. And the judge apparently does not view this issue as one requiring imminent action, having set a hearing for a month after Smith raised it and with an unclear timeline for a ruling after that. Her treatment thus far of a subject deemed urgent by the special counsel might not bode well for modifying Trump’s release conditions. We’ll see whether Smith tries to bolster his position on paper ahead of the hearing. Even if that doesn’t affect Cannon’s ruling, he may be able to create a stronger record for any appeal that he takes. Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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