UPDATE (May 28, 2024, 11:34 a.m. ET): Shortly after I published this, Cannon sided with Trump, concluding that Smith didn’t “meaningfully confer” with defense counsel before filing the motion. There hasn’t yet been an announcement about a possible appeal.
Relations between Donald Trump’s legal defense team and special counsel Jack Smith’s office were already tense. As a New York Times report explained overnight, there’s a new flash point in the former president’s classified documents case.
Former President Donald J. Trump’s lawyers on Monday assailed a request by federal prosecutors to limit what he could say about a new flare-up in a case accusing him of illegally retaining classified documents after leaving office. In an angry court filing, the lawyers pushed back hard against the request by the office of the special counsel, Jack Smith, to revise Mr. Trump’s conditions of release by forbidding him to make any public comments that might endanger federal agents working on the prosecution.
To briefly recap, it was last week when the suspected felon, referencing the newly unsealed court records, claimed by way of his social media platform that the Justice Department “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.
After the claims were thoroughly and completely discredited — and the FBI itself took the unusual step of issuing a public statement leaving no doubt that the former president and his allies simply had no idea what they were talking about — Trump repeated the claim anyway.
The truth was entirely mundane: The FBI’s relevant paperwork included standard language, used every time the bureau executes a court-approved search warrant. Indeed, when the FBI searched Biden’s home in Delaware as part of a separate search for classified documents, the paperwork included the same phrasing. This obviously does not mean that the Biden administration was “ready to take out” the Democratic incumbent himself.
But for prosecutors, this was more than just a lie: It was a lie that endangered the lives of law enforcement officials. With this in mind, Smith’s office wants U.S. District Judge Aileen Cannon to limit what the Republican can say in this case that might endanger law enforcement officials for no reason.
This would be separate, of course, from the gag order in Trump’s hush money case and the unrelated gag order in the election interference case.
The presumptive GOP nominee’s lawyers have pushed back against this latest effort, calling it “an extraordinary, unprecedented and unconstitutional censorship application” that “unjustly targets President Trump’s campaign speech while he is the leading candidate for the presidency.”
The Times’ report added, “Mr. Trump’s legal team said that Mr. Smith’s request should be stricken from the docket and that he and his prosecutors should face contempt sanctions for filing it in the first place.”
At no point in the filing, however, did the attorneys make any effort to defend Trump’s lie or suggest that the lie had merit. Rather, Team Trump appears to believe that the former president must be allowed to continue to peddle the lie, without regard for the consequences.
As for the idea that Smith is seeking “an extraordinary, unprecedented and unconstitutional censorship application,” let’s not forget that (a) there’s nothing “extraordinary” about gag orders, as Trump and his lawyers really ought to know; (b) there’s nothing “unprecedented” about this, especially given the fact that the defendant has already had other gag orders imposed on him; and (c) gag orders are not inherently “unconstitutional.”
I’m reminded anew of something U.S. District Court Judge Tanya Chutkan recently explained to one of Trump’s lawyers: “Mr. Trump is a criminal defendant. He is facing four felony charges. He is under the supervision of the criminal justice system, and he must comply with the conditions of release. He does not have the right to say and do exactly as he pleases.”
Nevertheless, the matter will be in Cannon’s hands. If she sides with the defendant — which is to say, if she sides with Trump again — the special counsel’s office will almost certainly take the matter to the 11th Circuit Court of Appeals, which has already demonstrated a willingness to reverse Cannon. Watch this space.
This post updates our related earlier coverage.
