On Friday, special counsel Jack Smith moved to modify Donald Trump’s release conditions in the classified documents case, asking U.S. District Judge Aileen Cannon to clarify that the defendant can’t make statements putting law enforcement in danger. The special counsel cited “several intentionally false and inflammatory statements recently made by Trump that distort the circumstances under which the Federal Bureau of Investigation planned and executed the search warrant at Mar-a-Lago.”
For background, my colleague Steve Benen explained that the presumptive GOP presidential nominee claimed on his social media platform that the Justice Department had:
… ‘AUTHORIZED THE FBI TO USE DEADLY (LETHAL) FORCE’ while executing a court-approved search warrant at Mar-a-Lago. Trump issued an outlandish fundraising appeal soon after, falsely claiming that President Joe Biden was ‘locked & loaded’ and ‘ready to take me out’ during the FBI’s search of his glorified country club.
Smith told Cannon in his motion that Trump’s false suggestion that agents were complicit in a plot to assassinate him has exposed the agents “to the risk of threats, violence, and harassment.” The special counsel argued:
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. Such a prohibition will also minimize further prejudice caused by the defendant directing false and inflammatory messages regarding the facts of this case to potential jurors who may be summoned by the Court for jury service in this matter.
In a footnote to Smith’s motion (which becomes important later), the special counsel’s office noted that it had sought to confer on the matter with Trump’s lawyers, who objected to the motion as well as the timing of a holiday weekend conferral. Yet, Smith observed that Trump had continued to make false statements about the agents.
In response Monday, Trump’s lawyers complained not only about the request “to impose an unconstitutional gag order on President Trump” based on “vague and unsupported assertions,” but also that the government lawyers involved in Smith’s motion should be sanctioned for filing it “without meaningful conferral.”
As ever, the lawyers in the case are living on different planets, and Cannon’s response shows that she’s still living on something closer to Trump’s. In an order Tuesday, the Trump appointee who’s been slow-walking the case denied Smith’s motion “for lack of meaningful conferral.” She also chastised the government’s use of “editorialized footnotes” and what she deemed its lack of professional courtesy. Importantly, however, she denied Smith’s motion “without prejudice,” meaning that the Justice Department can try again after complying with the judge’s procedural dictates. (She also denied Trump’s motion to strike and for sanctions “without prejudice.”) While the government will be able to clear Cannon’s procedural formality, the bigger question will be how she receives the substance of the presumably forthcoming motion. Given her handling of the case thus far and the tone of her latest order, Smith may have a tough task with this judge yet again, one that could finally lead to the special counsel taking Cannon up on appeal and possibly building a case to try and get a new judge to preside. 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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