Will Trump get another gag order? Jack Smith is hoping Judge Aileen Cannon will agree to it
A federal judge in Florida appeared skeptical Monday when the government said former President Donald Trump should be gagged after claiming President Joe Biden was "locked & loaded" to kill him during an FBI raid of Trump's Mar-a-Lago club.
"Joe Biden was locked & loaded ready to take me out & put my family in danger," Trump said in a campaign fundraising email. That was one of a handful of statements special counsel Jack Smith noted in requesting the gag order in the Florida federal criminal case that charges Trump with willfully retaining national defense information.
Trump cited language tied to the search warrant that prohibited using force unless there was a reasonable belief that the target posed an "imminent danger of death or serious physical injury." Smith's legal team said that is "routine practice to restrict the use of force," and that the raid was scheduled for when Trump and his family would be away.
Trump also said in a separate fundraising email that it was "revealed that Biden’s DOJ was authorized to use DEADLY FORCE for their DESPICABLE raid in Mar-a-Lago" and "they're just itching to do the unthinkable."
Judge Aileen Cannon indicated at the hearing that she was confused over how Trump's statements posed a threat, given that FBI agent names are redacted in court filings. Prosecutor David Harbach said some names have become public.
Trump lawyer Emil Bove on Monday suggested that Smith was politically motivated to seek a gag order against Trump ahead of his presidential campaign debate with Biden on Thursday. At a separate hearing in the case on Friday, Bove complained that Smith – who was given greater autonomy in the classified documents case after being appointed special counsel by Attorney General Merrick Garland – was too independent from Biden's Justice Department.
Harbach characterized Trump's comments about the raid as "flagrantly false" at the hearing, and said Trump had a pattern of calling on his followers to respond to his outcries.
What would the proposed gag order do?
Garland appointed Smith as special counsel over two separate investigations into Trump, one dealing with the classified documents and a second dealing with Trump's efforts to overturn the 2020 election. Special counsels have more independence from Justice Department leadership than other federal prosecutors.
Smith ultimately brought charges against Trump in both cases.
The government is requesting an order from Cannon that would prevent Trump from making public statements "that pose a significant, imminent, and foreseeable danger to the law enforcement agents participating in the investigation and prosecution of this case."
"These deceptive and inflammatory claims expose the law enforcement professionals who are involved in this case to unjustified and unacceptable risks," the government argued in a motion ahead of the hearing.
"Predictably and as he certainly intended, others have amplified Trump’s misleading statements, falsely characterizing the inclusion of the entirely standard use-of-force policy as an effort to 'assassinate' Trump," the government said.
Trump has argued the proposed gag order would violate his free speech rights, and in particular would impair his campaign communications during the presidential election season.
Trump has already been hit with gag orders in at least three other cases, including his federal criminal election interference case and his New York criminal hush money case. The judge in his New York case is now considering a motion by Trump to lift that gag order following Trump's conviction at trial. Trump is scheduled for sentencing in that case July 11.
Trump challenges Jack Smith's funding
Trump lawyer Emil Bove also challenged the funding for Jack Smith's prosecution of the case at the Monday hearing. Bove said the Justice Department shouldn't be permitted to use congressional funding allotted in the 1970s for independent investigations in politically sensitive areas.
"More oversight from Congress is required for the extraordinary things that are going on in these prosecutions," Bove told Cannon at the hearing.
Justice Department lawyer James Pearce defended the funding source at the hearing, noting it has been upheld in previous special prosecutions. That includes funding for special counsel David Weiss, who just secured a conviction against Hunter Biden for lying to a gun dealer about his drug use.
Three days of hearings
The Monday hearing was one of three consecutive business days set aside to hear arguments in the case.
On Friday, Cannon entertained Trump's argument that the case should be dismissed because special counsel Jack Smith wasn't authorized to bring it. Trump's legal team said the attorney general isn't authorized to appoint a special counsel to an investigation without approval by the Senate.
Cannon didn't make a ruling on that argument Friday. The judge, who was appointed by Trump and has drawn criticism over friendly rulings to the former president that experts said departed from legal norms, is also holding a closed hearing in the case Tuesday to consider Trump's argument that the search was unconstitutional and therefore seized documents should be excluded from the case.
Contributing: Reuters; Bart Jansen; Hannah Phillips at USA TODAY Network
This article originally appeared on USA TODAY: Trump gagged again? Florida judge seems skeptical in documents hearing
