U.S. District Court Judge Aileen Cannon held two hearings in former President Donald Trump’s classified documents case on June 24, with arguments on special counsel Jack Smith’s appointment and a request to modify the conditions of release for the former president.
The modified conditions, effectively a gag order, may rely on a close reading of former President Trump’s social media statements. The arguments focused not on First Amendment issues, as previous gag orders have, but a standard of “safety.”
Attorney David Harbach, arguing for the prosecution, relied on the Bail Reform Act, which outlines conditions of release. Former President Trump was released subject to 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.”
Concerned with the safety of FBI agents who may be witnesses at trial, and the law enforcement community in general, Mr. Harbach argued this takes the requested order “out of the land of the First Amendment.”
The statements in question are social media posts and campaign messages former President Trump made about the FBI raid on Mar-a-Lago, in which he highlighted that the agents were authorized to use “deadly force.”
Prosecutors argue that the provision highlighted by former President Trump and his supporters is standard language, that the FBI has released a statement to clarify this, and that former President Trump is aware that the raid was arranged to occur when the Trump family would not be home. His statements, they say, were therefore intentionally false and misleading.
Attorney Todd Blanche, arguing for former President Trump, said the statements were a critique of President Joe Biden and his administration’s handling of the case and the raid on Mar-a-Lago, and were not targeted at all toward law enforcement.
Threat Standard
The parties also presented different standards needed to “curtail speech.”Mr. Harbach acknowledged the 11th Circuit, under which Judge Cannon’s district falls, is undecided as to whether the standard is “serious or imminent threat” or “clear and present danger.” He said the prosecution assumed the standard was “significant and imminent threat,” as Supreme Court precedent shows “clear and present danger” is not the standard for the kind of relief the prosecution is seeking.
Pressed for evidence of threats caused by former President Trump’s speech, Mr. Harbach repeatedly said that context was important, and the context was that former President Trump had a “call and response” relationship with his supporters where some would engage in violent action or harassment because of former President Trump’s statements. He argued that former President Trump was aware of the effect he had on supporters, and aware that his Truth Social platform was a “potent tool.”
Mr. Blanche argued that the prosecution used as an example a case where a mentally troubled individual planned an attack on an FBI office, and another case that occurred after the Hunter Biden trial, and no violence was cited.
Other Remedies?
Mr. Blanche argued the Bail Reform Act also requires the “least restrictive” condition to meet the safety requirement and the proposed gag order did not fit the bill.When Judge Cannon asked the prosecution why redacting the names of these agents who may testify at trial was not enough, Mr. Harbach presented three reasons.
One, some agents were already doxxed after the raid and their names were released. Two, he alleged the defense is opposed to such redactions. Three, the names will be made public if the case goes to trial.
Mr. Blanche said the defense never argued against redacting witness names, and had instead argued for the release of additional evidence. He added that it was horrible that the agents were doxxed and he hoped the special counsel would go after such cases.
Potential Arrest?
This proposed gag order is markedly different from the past three gag orders imposed on former President Trump because it deals with his conditions of release. A violation could therefore land him in jail.Mr. Blanche raised concerns that this was both 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.
Mr. Blanche argued the proposed order was overly broad, and attorneys would not be able to properly counsel former President Trump on what he could say. Prosecutors could request the revocation of his bail without notifying former President Trump, creating a dangerous precedent, he argued.
Mr. Harbach argued that the order would not have the chilling effect Mr. Blanche is concerned about because it does not target campaign speech. The only speech it curtails is speech that should not be tolerated, he said.
Appropriations Clause
The parties also argued over whether the special counsel’s office was properly funded under the Appropriations Clause, a continuation of last week’s hearing on the special counsel.Defense attorneys argued there is no congressional appropriation for the special counsel’s office, even urging the judge to rule that additional congressional oversight was necessary.
Prosecutors announced that the Justice Department’s position is that even if the judge finds that the special counsel should not be funded through the “permanent, indefinite appropriation” for the independent counsel position, the department is prepared to fund Mr. Smith’s office with the department’s yearly appropriations.
