Special Counsel Fails in Efforts to Limit Trump’s Attacks on FBI Agents

U.S. District Judge Aileen M. Cannon did not immediately rule on the request to add a new condition to Trump’s bail in his upcoming trial on alleged misuse of classified information. Her action suggested that a decision is unlikely to come before Thursday’s debate between Trump, the presumptive Republican presidential nominee, and President Biden, his Democratic rival.

The hearing, which lasted about an hour and a half, was held in response to Smith’s request to modify Trump’s bail to prevent testimony that would pose an imminent threat to law enforcement officials working on the documents case.

Smith made the request last month after Trump suggested on social media that FBI agents had the authority or hoped to use deadly force when they searched his Florida home for classified documents in 2022. In that message, Trump posted that Biden’s Justice Department “AUTHORIZED THE FBI TO USE DEADLY (LETHAL) FORCE. NOW WE KNOW FOR SURE JOE BIDEN IS A SERIOUS THREAT TO DEMOCRACY.” The message also called Biden mentally incompetent.

Trump’s accusation — repeated and amplified by many of his supporters — was based on a standard description of the limits of the use of force by federal agents involved in the Mar-a-Lago search. The same legal language has been used in countless other FBI operations, including a voluntary search of Biden’s home as part of another classified documents investigation.

Trump is already subject to a news gag order in two of his other criminal cases, and while Smith’s latest request is not technically a news gag order, it would work in a similar way. The main difference is that potential violations of his bail conditions could land him in prison more quickly.

Attorney General David Harbach argued that Trump’s statements about FBI agents involved in the classified documents case were “dangerous” to investigators who might testify against the former president, who faces 40 counts of willfully withholding classified information after leaving the White House and obstructing government efforts to get that information back.

Harbach’s presentation was inconsistent, and at one point the judge reacted harshly to his objection that he was not allowed to present his argument in full.

“Mr. Harbach, I do not appreciate your tone,” Cannon said, adding that she expects “decency at all times.” “If you are not capable of that, I am sure one of your colleagues is.” Harbach later apologized to the judge.

Whatever the line between a person’s right to free speech and restricting a defendant from speaking about his case, Harbach argues, Trump’s statements “do not even come close to crossing that line.”

The prosecutor called Trump’s social media following “a particularly powerful tool” that he boasts about, knowing full well how his supporters will react. “He knows it, he knows it,” Harbach insisted, waving his hand for emphasis. “To say something like that is more than irresponsible – it’s dangerous.”

Cannon repeatedly pointed out that a new restriction was unnecessary because she had already agreed to remove FBI agents’ names from public court records. Harbach responded that some names are public on the internet and that Cannon should not wait until something terrible happens before enforcing the restrictions.

Trump’s attorney, Todd Blanche, argued that while the prosecutor repeatedly insisted that Trump’s comments were obviously dangerous, in reality it was not clear to anyone outside the special counsel’s office what line the special counsel was trying to draw. He said it was unfair to blame the presidential candidate for the actions of a handful of people who may have been troubled.

“Of course, President Trump has absolutely no desire for anything bad to happen to law enforcement,” Blanche said. “It’s a criticism of President Biden and his Justice Department, and it’s perfectly fair and protected political speech.”

Cannon said she would give the parties until Wednesday to submit additional evidence to bolster their arguments on the case docket. The hearing came after a morning session in which Trump’s lawyers argued that Attorney General Merrick Garland abused the Justice Department’s special counsel rule to pursue Trump.

Similar arguments by other defendants charged by special investigators were unsuccessful.

Cannon was particularly interested in how much the appointment of special counsels costs the government, at one point saying it costs a “significant” amount of money, even though that figure represents only a drop in the bucket of Justice Department spending.

The most expensive special investigation in recent years, conducted by Robert S. Mueller III and focused on alleged Russian interference in the 2016 election, cost about $32 million over several years. The Justice Department’s annual budget is more than $35 billion – meaning Mueller’s work cost significantly less than 0.1 percent of the agency’s expenses.

Trump’s lawyer Emil Bove argued that the Justice Department made a fundamental error by conducting an independent investigation by a special counsel without adequate oversight.

“Our position is that more congressional oversight is needed … for the extraordinary things that happen,” like the news gag request, Bove said. “Who approved that? Was it the attorney general?”

In a hearing on Friday on the constitutionality of the special counsel’s appointment, Bove argued that Smith had too much independence and that his appointment should have been approved by the Senate.

Cannon has worked diligently to examine a number of legal issues raised by the defense, including some that are more commonly raised on appeal. in other cases. Before becoming a judge, Cannon was a prosecutor working on appeals, and long stretches of Monday morning’s hearing sounded more like an appellate court hearing than a trial court hearing.

In response, James Pearce, an attorney in the special counsel’s office with expertise in appeals, presented the government’s arguments on Monday morning.

Pearce said the defense’s claims that Smith’s office was not adequately funded by the government were specious and not supported by case law. Even if the judge had found a procedural error, he said: there would be no meaningful remedy, since the Ministry of Justice could easily obtain the necessary funds from another fund of the agency.

At one point, Cannon warned Pearce not to interrupt her during her speech, but the overall tone of the morning hearing was polite if a little dull. Cannon did not immediately comment on the defense’s argument to drop the charges.