(NEW YORK) — The judge overseeing Donald Trump’s federal classified documents case will hear arguments Monday afternoon to consider imposing a limited gag order that would prohibit the former president from making statements that pose a “significant, imminent, and foreseeable danger” to law enforcement agents.
The request for a gag order by special counsel Jack Smith follows a month of escalating rhetoric from Trump about federal agents’ use-of-force policy during their August 2022 search of Trump’s Mar-a-Lago estate for classified documents, including a Trump campaign message that President Joe Biden was “locked & loaded ready to take me out & put my family in danger.”
In a filing last month, Smith argued that Trump’s statements that law enforcement officers were “complicit in a plot to assassinate him” were intentionally false and misleading, and “put a target on the backs of the FBI agents.”
Trump’s defense attorneys responded to the request by claiming that prosecutors have failed to demonstrate that Trump’s statements resulted in any material threats or harassment against law enforcement.
Echoing the former president’s defense against the limited gag order in his New York criminal hush money case, Trump’s lawyers wrote that the proposed gag order — which they describe as a “shocking display of overreach and disregard for the Constitution” — amounts to political interference by limiting Trump’s statements ahead of this week’s presidential debate and the Republican National Convention in July.
“[T]he motion is a naked effort to impose totalitarian censorship of core political speech, under threat of incarceration, in a clear attempt to silence President Trump’s arguments to the American people about the outrageous nature of this investigation and prosecution,” defense lawyers said in a June filing.
Trump pleaded not guilty last year to 40 criminal counts related to his handling of classified materials after leaving the White House, after prosecutors said he repeatedly refused to return hundreds of documents containing classified information and took steps to thwart the government’s efforts to get the documents back. Trump has denied all charges and denounced the probe as a political witch hunt.
The gag order hearing, being conducted by U.S. District Judge Aileen Cannon, will follow a related hearing Monday morning in which Trump attorneys are challenging the funding of the special counsel’s office.
‘False and extremely dangerous’
Trump’s public statements related to the Mar-a-Lago raid have recently emphasized the use-of-force policy in place during the raid, which Trump has repeatedly associated with “Biden’s DOJ.”
Prosecutors argue that law enforcement employed the Department of Justice’s standard use of force policy, which allows the use of force “when the officer 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.”
In filings, Smith also emphasized that the search was scheduled in the off-season when Trump and his family were not present at Mar-a-Lago, was conducted with coordination with Secret Service and Mar-a-Lago staff, and that Trump’s lawyer was notified before the search was executed.
In a rare public rebuke, the FBI issued a statement last month to confirm that law enforcement used standard protocols related to use of deadly force during the raid, adding that, “No one ordered additional steps to be taken and there was no departure from the norm in this matter.”
Attorney General Merrick Garland also described accusations that the DOJ authorized Trump’s assassination as “false and extremely dangerous” and added that the same policy was in place during the search of Presidents Biden’s home during the investigation into his retention of classified documents.
Threats against law enforcement
Prosecutors have emphasized that the proposed gag order against Trump would be narrowly limited — solely prohibiting Trump from falsely speaking lying “about FBI agents intending to murder him and his family” — in order to protect the safety of law enforcement officials.
To justify the threat against law enforcement officials, prosecutors claimed that Trump’s rhetoric encouraged a supporter to make threats to an FBI agent associated with the Hunter Biden case, including threatening that agents would be “hunt[ed] down” and “slaughter[ed]” if Trump does not win the 2024 election.
Prosecutors also argued that a Trump supporter attacked an FBI field office in Cincinnati with an AR-15 and a nail gun in August 2022 after the raid on Mar-a-Lago — an attack which prosecutors say was partially inflamed by Trump’s comments on social media after the raid.
Defense lawyers wrote that Trump has engaged in his “constitutionally protected campaign speech” and that prosecutors have failed to prove that Trump’s statements have directly resulted in threats or harassment. In addition to highlighting two examples of threats or violence, prosecutors broadly argued that Trump’s inflammatory language about the raid has created a “combustible atmosphere” that poses an immediate risk to law enforcement.
“No court would tolerate another defendant deliberately creating such immediate risks to the safety of law enforcement, and this Court should not wait for a tragic event before taking action in this case,” prosecutors said in a filing last week.
Trump’s other gag orders
Trump has generally been unsuccessful in challenging the gag orders imposed in his other criminal and civil cases, occasionally securing stays of the orders but failing to overturn the orders as unconstitutional.
New York’s highest court declined to take up Trump’s challenge to the gag order in Trump’s civil fraud case, which prohibited Trump from making comments about judicial staff.
Last week, the same court declined to immediately consider Trump’s challenge to the gag order in his New York hush money case — which prohibits Trump from making statements about jurors, witnesses, and others involved in the case — after determining that “no substantial constitutional question is directly involved” in Trump’s challenge. A mid-level appeals court last month found that the gag order “properly weighed petitioner’s First Amendment Rights against the court’s historical commitment to ensuring the fair administration of justice.”
Trump also unsuccessfully challenged the gag order in his federal election interference case that prohibited from making statements about prosecutors other than Smith, witnesses, and courthouse staff.
“Given the record in this case, the court had a duty to act proactively to prevent the creation of an atmosphere of fear or intimidation aimed at preventing trial participants and staff from performing their functions within the trial process,” a panel of Court of Appeals judges in Washington, D.C. wrote in an order last year upholding the gag order.
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