DOJ attorney Mr. Harbach argued the intention was not to send former President Trump to jail with the order.
He said that former President Trump was entitled to be frustrated but there are limits to what a criminal defendant can say, and statements that present imminent danger to witnesses are not allowed.
Mr. Harbach rebutted the defense's argument that there was no case of violence tied to former President Trump's speech. He argued no causal link was necessary, and the judge did not need to wait for an incident to occur to apply such an order.
Judge Cannon said there still needs to be a factual connection.
Mr. Harbach argued that former President Trump is aware that Truth Social is a "potent tool" and has boasted of this. He argued former President Trump should not be allowed to make false statements on such a large platform.
Judge Cannon asked prosecution attorney Mr. Harbach about the ex-parte and extrajudicial concerns.
Mr. Harbach said former President Trump's bail would be out of this district, and any application to revoke bail would come from this district.
He argued there was no chilling effect, as "nothing" targeted was campaign speech. He argued the speech targeted is not speech that should be tolerated.
Trump attorney Mr. Blanche said it was horrible that FBI agents were doxed, and there were ways to deal with that and fight that outside of restricting former President Trump's speech with the threat of arrest.
He said he hoped the special counsel would go after those kinds of doxing cases.
Trump attorney Mr. Blanche asked to add context to some of the social media posts submitted. He said former President Trump's Truth Social post stating "If you go after me, I'm coming after you!" was a political statement, and did not in any way mean he meant to interfere with his criminal cases.
Mr. Blanche said the proposed order is "very chilling," because it is so vague that his attorneys would not be able to properly counsel him on what he was allowed to say.
Judge Cannon gave the defense a June 26 deadline to supplement their brief.
Trump attorney Mr. Blanche also argued that the prosecution's request differed from a standard gag order in that former President Trump could make a statement on the debate stage, and without his knowing, be subject to arrest. He raised concerns that the order would be ex-parte (not requiring the presence of both parties) and extrajudicial, as it would fall under the jurisdiction of a parole officer and not necessarily the judge.
Prosecutors could request the revocation of his bail without notifying former President Trump, and this creates another dangerous precedent, he argued.
Mr. Blanche also argued this could lead to additional unforeseen consequences in New York and Georgia, where former President Trump has other criminal cases.
Trump attorney Mr. Blanche argued that there is no connection between the doxing of FBI agents and former President Trump.
He argued that the prosecution presented a case where a mentally troubled individual planned an attack on an FBI office, and other case that occurred after the Hunter Biden trial, and no violence was cited.
He argued it was unfair for the special counsel to describe these individuals as "Trump supporters" and try to create a connection, because this could create a dangerous precent.
Trump attorney Mr. Blanche said there was also the additional context that the defendant is the Republican nominee for the presidential candidate and the prosecution falls under his main political opponent.
Mr. Blanche added the defense never argued against redacting the names of FBI agents. The defense had argued for the release of many documents in the case, but had not opposed the redacting of witness names.
Attorney Todd Blanche argued for former President Trump, and said that Bail Reform Act required the "least restrictive" conditions to meet the safety requirement and the proposed gag order does not fit the bill.
Mr. Blanche argued the proposed order is extremely vague. He said there was no connection shown between the Truth Social posts presented and the threats against law enforcement, and the conclusion that all law enforcement needed protection was incorrect.
Mr. Blanche said former President Trump's statements were not attacks on law enforcement, but attacks against President Joe Biden. He said former President Trump has been extremely frustrated with the Biden administration's handling of the case and the raid on his home.
DOJ attorney Mr. Harbach said the prosecution made its best effort to tailor the order as narrowly as possible, limiting statements only as it relates to law enforcement and their role in the case.
He argued there are a finite number of statements restricted under this kind of order, looking only at words creating imminent danger to law enforcement witnesses participating the case, satisfying constitutional concerns.
Judge Cannon asked for authority that showed that speech curtailed under the Bail Reform Act's conditions to protect the safety of a person or community did not require First Amendment analysis.
DOJ attorney Mr. Harbach maintained that speech curtailed for these reasons was "outside First Amendment concerns," pointing to the fact that they could find no cases where these types of orders resulted in First Amendment analyses.
Judge Cannon asked for examples that the statements have created an imminent threat to safety.
DOJ attorney Mr. Harbach argued there was "ample danger" that violent acts could occur between now and the trial.
He argued that former President Trump has a "call and response" relationship with his followers, and understands the scope of his power and influence on his supporters.
Mr. Harbach had also made a reference to the special counsel's prosecution of former President Trump in the District of Columbia, irritating Judge Cannon again. The judge chastised him for not submitting records to the court and instead asking her to rely on the record of a case outside the district.
DOJ attorney Mr. Harbach said there were three reasons redacting the witness names did not alleviating a need for modifying the conditions of release.
One, some names were already doxed. Two, he alleged the defense is opposed to such redactions. Three, the names will be made public if the case goes to trial.
Judge Cannon said additional measures could be taken before witness names were released for trial, instead of modifying the order now.
DOJ attorney Mr. Harbach appeared frustrated while answering the judge's questions, raising his voice and commenting on the judge's line of questioning.
"Mr. Harbach, I don't appreciate your tone, we've been here before," Judge Cannon said. She said that if he was not able to conduct himself professionally, one of his colleagues could step in for him.
Mr. Harbach asked for a minute and composed himself.
DOJ attorney Mr. Harbach said the question the court should ask is whether the government's request is "reasonably necessary," adding that they were not "operating with a blank slate."
Former President Trump's statements on social media have a predictable response with his supporters, Mr. Harbach argued.
Mr. Harbach argued that supporters of former President Trump have responded online with "explicit, violent, dangerous" comments.
Judge Cannon asked the prosecution about weighing the order against the First Amendment, and Mr. Harbach answered that, relying on the Bail Reform Act, their request takes the order "out of the land of the First Amendment."
Former President Trump was released subject to additional conditions including “the least restrictive further condition, or combination of conditions that such judicial officer determines will reasonably assure the appearance of the person as required and the safety of any other person and the community.”
Mr. Harbach said their modification request is to ensure "the safety of any other person and the community," in this case, the law enforcement community.
David Harbach argued for the prosecution, citing the Bail Reform Act and the court's authority to change former President Trump's conditions of release.
Prosecutors want the judge to amend the conditions to prohibit former President Trump from making statements that "that pose a significant, imminent, and foreseeable danger to law enforcement agents participating in the investigation and prosecution of this case.”
Mr. Harbach said that safety was the touchstone for relief, and the order was necessary for the safety of FBI agents and the "safety of the community" of law enforcement.
In rebuttal, Trump attorney Mr. Bove reiterated that dismissal of the indictment was appropriate relief. He pointed to United States v. McIntosh, where the case was dismissed after appeal when the Justice Department acknowledged the case could not have been brought without the specific funding stream.
Mr. Bove argued that more congressional oversight was needed, while the government argued not much was required at all.
DOJ attorney Mr. Pearce said that the Justice Department holds that, since 1978, the only principal officer in the department is the attorney general.
Judge Cannon asked why U.S. Attorneys and Inspector Generals are subject to confirmation by Congress if they are also inferior officers.
Mr. Pearce said it creates "better officers" and Congress has the right to confirm these appointments but they are still inferior officers, and this not does affect the appointment of the special counsel.
Judge Cannon asked the prosecution to explain the "regulatory special counsel" concept introduced.
Mr. Pearce said that after the EGA expired, attorneys general relied on regulatory authority to appoint special counsel. He used as an example Robert Fiske, whom attorney general Janet Reno appointed as special prosecutor.
Mr. Pearce argued that the special counsel needs adequate independence, because they are generally appointed to investigate the Justice Department, or other high ranking executive branch officials.
Judge Cannon asked if there has ever been a case where an attorney general has rescinded these orders "midstream" an investigation.
"I'm not familiar with any," Mr. Pearce said.
Judge Cannon said the absence of any historical examples would suggest that special counsel removal is not an expected remedy.
Prosecution attorney Mr. Pearce said he agreed that under the EGA the independent counsel had more independence, by design, and the Reno Regulations fixed Congress's concerns about lack of oversight of these outside counsel.
Mr. Pearce argued that the special counsel is still independent, but receives more oversight than the previous "independent counsel" position.
He said the attorney general's power to rescind or modify the special counsel order at any time does not limit the special counsel's independence, but ensures that the attorney general is always the principal officer and the special counsel is always the inferior officer.
Judge Cannon asked Mr. Pearce multiple times whether this was a constitutional challenge, and Mr. Pearce answered it was not, but, pressed for an answer, said this was "not a hill I'm inclined to die on."
This drew a laugh from the judge, who said that was fine and told Mr. Pearce he was doing a fine job arguing his points.
Attorney David Harbach has previously argued for the prosecution in Judge Cannon's court, and raised his voice and yelled multiple times, frustrating the judge. Mr. Pearce appears to be taking the opposite tack, and the judge appears receptive.
Judge Cannon asked whether the Justice Department could fund the special counsel's office via alternative sources, and DOJ attorney Mr. Pearce answered that it could.
The Justice Department receives permanent yearly appropriations, which can be drawn on to fund the special counsel as well, he said.
James Pearce, arguing for the prosecution, argued the office's spending is in line with long-standing understanding that Congress has given permanent, indefinite appropriation for such use.
A source and a purpose is all that is necessary to satisfy the appropriations clause, he argued. The judge asked whether he could point to a statute to support to this, and he pointed to a statute about the attorney general's scope of authority.
They discussed the expenditures of Mr. Smith's office, which is being made public for six-month intervals. Mr. Pearce said he did not know what the review process for the expenditures were.
The Justice Department's internal regulations governing outside counsel, referred to as the Reno Regulations as they were created under Attorney General Janet Reno, cannot be cited as law, Mr. Bove argued, and cannot be used to support Mr. Smith's funding.
Last week, the government had argued that Mr. Smith was independent, satisfying the appointment issue, but this week they will have to argue that he is subject to supervision in order to satisfy the appropriations issue, Mr. Bove argued.
Under the Reno Regulations, the attorney general has full authority to discontinue a case or rescind his order for a special counsel. Under the expired law, the Ethics in Government Act (EGA), creating an independent counsel office, the independent counsel had full autonomy, creating what Mr. Bove referred to as a parallel attorney general.
Judge Cannon asked, "is there any cap to this funding?"
Trump attorney Mr. Bove said there was not, and that posed a separation of powers problem.
Judge Cannon asked who was able to access this permanent appropriation and why, whether there was an authority for the unlimited funding, and how this relates to the defense's argument.
Trump attorney Mr. Bove argued the Justice Department's interpretation of the Appropriation's Clause is "strained."
The prosecution's position is that the department has statutory authority to “permanent, indefinite appropriation" for an independent counsel.
Mr. Bove pointed to two federal cases where funding issues tied to the Justice Department were the basis for a defendant challenging the prosecution. Dismissal of the indictment was "appropriate" in this case, he argued.
Mr. Smith was in the courtroom today but not delivering the arguments.
Defendants were not present. Attorney Emil Bove argued for former President Trump.
At 10 a.m., U.S. District Judge Aileen Cannon will hear arguments in the Appropriations Clause challenge raised by former President Donald Trump in his motion to dismiss the classified documents case based on the alleged unlawful appointment of special counsel Jack Smith.
Then at 3 p.m., the court will hear arguments on the special counsel's request to modify former President Trump's conditions of release, which is effectively a gag order.
On June 25, the court will also hold a hearing related to former President Trump's motion alleging prosecutors violated his attorney-client privilege and that law enforcement unlawfully raided Mar-a-Lago. The morning session of this hearing will not be open to the public because it deals with grand jury materials that remain under seal.
Special counsel Jack Smith’s office again requested that a federal judge impose a gag order on former President Donald Trump in his classified records case, saying that new evidence of an alleged threat targeting an FBI agent is a good enough reason to support their arguments.
In a court filing submitted on June 21, Mr. Smith urged U.S. District Judge Aileen Cannon to rule favorably on his earlier gag order request, saying that a new piece of evidence should support his argument. He claimed that an alleged threat by a Trump supporter toward an FBI agent shows that former President Trump’s remarks about law enforcement officials pose an imminent threat.
“Statements that present a significant, imminent, and foreseeable danger to the law enforcement agents working on this case pose a significant and imminent threat to the integrity of these criminal proceedings,” said the court motion, which was filed on the same day that Judge Cannon held a hearing on the legitimacy of Mr. Smith’s appointment as special counsel in the classified records case.
U.S. District Judge Aileen Cannon has scheduled a hearing for June 24 on prosecutors’ request to modify the conditions of release for former President Donald Trump in the Southern District of Florida, where he has been charged with 40 counts related to allegedly mishandling classified documents.
The prosecution is requesting that the judge make clear that the former president “may not make statements that pose a significant, imminent, and foreseeable danger to law enforcement agents participating in the investigation and prosecution of this case.”