Judge Cannon rebukes Trump prosecutors over gag order request


The judge overseeing the criminal case against Donald Trump for hoarding classified documents at his Florida home has again chided special counsel Jack Smith’s team for its tactics — this time over a request for an order preventing Trump from repeating baseless claims that FBI agents carrying out a search at Mar-a-Lago last year were authorized to kill him.

U.S. District Judge Aileen Cannon turned down the gag order request Tuesday as she delivered another sharp warning to prosecutors that they need to make more concerted efforts at dialogue with Trump’s counsel before bringing disputes to the court.

“The Court finds the Special Counsel’s pro forma ‘conferral’ [with the defense] to be wholly lacking in substance and professional courtesy,” wrote Cannon, a Trump appointee. “It should go without saying that meaningful conferral is not a perfunctory exercise.”

Cannon didn’t rule out granting the request in the future, but she said prosecutors would need to to further engage with Trump’s side over the issue before she will take it up again. She also questioned Smith’s claim of urgency to file the gag order request, noting that prosecutors filed it on a “non-emergency” basis. It was submitted on the Friday evening before the Memorial Day weekend, leading Trump lawyers to complain that they were being rushed into responding.

In addition, Cannon appeared to fault Smith’s attorneys for skewing how they described the stance that Trump’s lawyers had taken on the proposed gag order. The judge suggested prosecutors had relegated Trump’s response to “editorialized footnotes,” rather than just reciting it neutrally to the court. She directed both sides to provide her with more details in the future on their attempts to work out such disputes and to do so “in objective terms.”

While the judge seemed piqued by the prosecutors’ actions, she turned down a request from Trump’s defense to impose sanctions on the prosecution for allegedly defying court rules and her previous orders. However, Cannon said that was possible if her rulings aren’t obeyed.

“Failure to comply with these requirements may result in sanctions,” the judge wrote in the brief order posted to the south Florida federal court’s online docket Tuesday morning.

A spokesperson for Smith declined to comment on the judge’s order.

Prosecutors have indicated they needed to move quickly with the gag request because of a series of inflammatory public statements by Trump claiming that FBI officials had given the OK to kill him during the court-ordered raid at Mar-a-Lago in May 2022. The claim stems from the inclusion of a policy on use of deadly force included in the operations plan given to agents prior to the search.

Current and former FBI officials have said the policy is standard, included in virtually all such operations plans, and intended to limit the use of force — not broaden it. In addition, they’ve noted that the operation was coordinated with the Secret Service, which is responsible for guarding Trump and his residences, and that it was intentionally scheduled at a time when Trump was out of town.

Prosecutors argued that Trump’s assertions were endangering the lives of FBI agents who took part in the search.

Cannon, the judge who delivered the brush back to Smith’s prosecutors Tuesday, has a prickly relationship with those attorneys. They often seem to bristle at her willingness to entertain some of Trump’s arguments and have signaled some impatience at the slow pace of the case, which was brought against Trump last June and presently has no scheduled trial date.

Last week, at a hearing in Cannon’s Fort Pierce, Florida, courtroom, the judge urged prosecutor David Harbach to “just calm down” as he argued against claims of prosecutorial misconduct leveled in the case.

It’s unclear whether prosecutors expected the filing of the gag request on Friday would immediately deter Trump from making similar statements. If so, it was unsuccessful: Trump’s campaign issued several fundraising emails over the weekend, including one that said President Joe Biden “authorized deadly force on my home.”

There is no indication Biden was involved in authorizing the Mar-a-Lago FBI raid or determining its parameters.

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