Criminal Justice

Judge rejects request to restrict Trump's speech on FBI, says motion was faulty

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U.S. District Judge Aileen Cannon

In this image from video provided by the Senate Judiciary Committee, Aileen Cannon testifies virtually during her nomination hearing to the Senate Judiciary Committee in Washington, on July 29, 2020. (Senate Judiciary Committee via AP)

U.S. District Judge Aileen M. Cannon on Tuesday denied a request from federal prosecutors that she order Donald Trump to stop making incendiary claims about law enforcement personnel, saying the government should have more thoroughly consulted with Trump’s attorneys before coming to her.

The judge, who is overseeing Trump’s classified documents criminal case in Florida, strongly rebuked special counsel Jack Smith, who submitted his motion after the former president and his political campaign issued statements that screamed “Biden’s DOJ was authorized to shoot me!”

Those comments exposed FBI agents involved in the case “to the risk of threats, violence, and harassment,” Smith said in the filing.

Cannon said the emergency request lacked “professional courtesy” and crammed important facts about the request in an “editorialized footnote.” She denied the motion “without prejudice,” which means prosecutors could raise the issue again in the future, presumably in a manner that would address Cannon’s concerns.

Trump’s attorneys quickly pushed back against the request over the weekend and said that Smith and his prosecutors “willfully disregard required procedures.” They also asked Cannon to impose sanctions on the attorneys who participated in making the motion.

In Cannon’s brief ruling Tuesday, she said prosecutors wrongly sought relief from the court without first trying to resolve the dispute with Trump’s attorneys. Smith wrote in a footnote to the motion that prosecutors contacted Trump’s lawyers but his lawyers “do not believe that there is any imminent danger, and asked to meet and confer next Monday.”

Cannon did not comment on the merits of the prosecutors’ argument or whether she thought Trump should be allowed to make these types of comments about law enforcement. As the presumptive Republican presidential nominee, Trump has pushed hard to be allowed to publicly criticize those involved in all four of his criminal trials—creating a challenge for judges as they try to balance Trump’s First Amendment rights with protecting the judicial process and the safety of those who are part of it.

Trump is charged in a federal indictment in Florida with improperly keeping classified documents after he left the White House and obstructing government efforts to retrieve the material. It is one of four criminal trials he faces as he seeks another term in the White House, but the Florida trial has been delayed indefinitely as Cannon slowly makes her way through a backlog of pretrial motions. On Tuesday, Trump was seated at the defense table in Manhattan criminal court, where jurors were hearing closing arguments in a state case in which he is accused of falsifying business records related to a hush money payment ahead of the 2016 election.

The claim last week by Trump and his supporters that FBI agents searched Trump’s home in 2022 with specific authorization to use deadly force is a mischaracterization of a standard FBI document that accompanied the court-approved operation.

The document—which was attached to a Trump motion to dismiss his Florida indictment that was unsealed by the court last week—explains long-standing FBI policies; much like police officers, FBI agents are essentially always authorized to use deadly force when it is necessary and legally justified, and when they are operating in the United States.

Attorney General Merrick Garland told reporters last week that the policy is intended to limit the use of force and that agents used the same policy when conducting a voluntary search for government materials at President Biden’s personal property last year.

Trump nevertheless has tried to argue that government agents were secretly trying or hoping to use lethal force against him.

In fact, people familiar with the investigation have previously told the Washington Post that the FBI deliberately chose to search Mar-a-Lago, Trump’s Florida home and private club, at a time when Trump was not there. Some of their planning took into account a desire to avoid any confrontation or confusion with the Secret Service agents who were assigned to secure his home, according to the people, who spoke on the condition of anonymity to describe internal deliberations.

Trump’s “allegation is false, and it is extremely dangerous,” Garland said at a news conference on an unrelated matter on Thursday.

Smith’s motion did not explicitly seek a gag order against Trump, but the kind of warning he describes would serve much the same function. Trump’s lawyers called it an “unconstitutional gag order” in their motion asking Cannon to reject the request.

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