Prosecutor in Trump classified documents case clashes with judge over gag order request

Prosecutor David Harbach encountered immediate pushback from U.S. District Judge Aileen Cannon, a Trump appointee.
Posted at 4:41 PM, Jun 24, 2024

A federal prosecutor in Donald Trump's classified documents case clashed with the judge Monday when he made a request to bar the former president from making threatening comments about law enforcement agents involved in the investigation.

Special counsel Jack Smith’s team is seeking to make as a condition of Trump’s freedom pending trial a prohibition on remarks that could endanger agents participating in the case. Prosecutors say those restrictions are necessary after Trump falsely claimed last month that the FBI was prepared to kill him when it searched his Florida estate, Mar-a-Lago, for classified documents two years ago.

But prosecutor David Harbach, a member of Smith’s team, encountered immediate pushback from U.S. District Judge Aileen Cannon, a Trump appointee, whose handling of the case has generated intense scrutiny.

The judge questioned Harbach about how she could fashion an order that did not run afoul of Trump’s First Amendment rights and whether prosecutors could prove a direct link between Trump’s comments and actions that might then follow.

“There still needs to be a correlation between the alleged, dangerous comments and the risk” to public safety, she said.

At one point, as he tried despite frequent interruptions from Cannon to rattle off the multiple rationales that he said existed for speech restrictions on Trump, a visibly exasperated Harbach noted acidly that “I’ve got one reason out so far.”

The comment drew a rebuke from Cannon, who said, “Mr. Harbach, I don’t appreciate your attitude.” She said that if he could not behave in a more professional manner, one of his colleagues could take over.

Harbach completed his arguments and later apologized to the judge, saying he hadn’t meant to be unprofessional.

Defense lawyer Todd Blanche disputed the idea that Trump’s comments posed an imminent threat to anyone in law enforcement and said prosecutors’ request would have a “chilling” effect. Trump is the presumptive Republican presidential nominee and is set to debate President Joe Biden on Thursday

Trump's often-incendiary rhetoric has carried legal consequences in other cases. The New York judge presiding over Trump's hush money trial, in which he was convicted of 34 felony counts last week, fined him a total of $10,000 for violating a gag order that barred him from verbal attacks on witnesses and jurors. A federal judge in Washington handling his election subversion case imposed a similar gag order last year that an appeals court later upheld.

It was not immediately clear when Cannon, a Trump appointee whose handling of the case has been closely scrutinized, might rule. The arguments are part of a three-day hearing that began Friday to deal with several of the many unresolved legal issues that have piled up in a case that had been set for trial last month but has been snarled by delays and a plodding pace. Cannon indefinitely postponed the trial, and it's all but guaranteed that it will not take place before the November presidential election.

Trump faces dozens of felony charges accusing him of illegally hoarding top-secret records at Mar-a-Lago and obstructing the FBI's efforts to get them back. Given the breadth of evidence that prosecutors have put forward, many legal experts have regarded the case as the most straightforward of the four prosecutions against Trump, who has pleaded not guilty. But Cannon has been slow to rule on numerous motions and has proved willing to entertain defense requests that prosecutors say are meritless.

Smith's team objected last month after Trump claimed that the FBI was prepared to kill him while executing a court-authorized search warrant of Mar-a-Lago on Aug. 8, 2022. He was referencing boilerplate language from FBI policy that prohibits the use of deadly force except when the officer conducting the search has a reasonable belief that the “subject of such force poses an imminent danger of death or serious physical injury to the officer or to another person.”

Trump falsely claimed in a fundraising email that the FBI was “locked & loaded ready to take me out & put my family in danger.”

Prosecutors say such comments pose a significant foreseeable risk to law enforcement, citing as examples an attempted attack on an FBI office in Ohio three days after the Mar-a-Lago search and the more recent arrest of a Trump supporter accused of threatening an FBI agent who investigated President Joe Biden's son, Hunter.

“Deploying such knowingly false and inflammatory language in the combustible atmosphere that Trump has created poses an imminent danger to law enforcement that must be addressed before more violence occurs,” prosecutors wrote in a court filing on Friday.

Trump's lawyers say they've failed to show that his comments have directly endangered any FBI official who participated in the Mar-a-Lago search.

“Fundamentally, the motion is based on the fact that President Trump criticized the Mar-a-Lago raid based on evidence from publicly filed motions in this case, as part of his constitutionally protected campaign speech, in a manner that someone in the government disagreed with and does not like,” they said.

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