Gagging Trump Again, This Time in Florida

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There were more fireworks in Judge Aileen Cannon’s Florida courtroom yesterday as special counsel Jack Smith’s team sought to impose a fresh gag order on Donald Trump in his classified documents case. Smith claimed that the gag order was needed to stop Trump from making “threatening comments” about law enforcement that might “endanger” FBI agents working on the case. Judge Cannon appeared skeptical of these claims for a variety of reasons, not least of which was the danger of infringing on Trump’s right to free speech. Jack Smith wants the gag order imposed as a condition of not locking Trump up in jail while awaiting trial. The judge won’t issue a ruling immediately and more hearings to consider various motions are scheduled this week.

A federal prosecutor in the classified documents case of Donald Trump clashed with the judge Monday as he faced skeptical questioning over a request to bar the former president from making threatening comments about law enforcement agents involved in the investigation.

Special counsel Jack Smith’s team is seeking to make as a condition of Trump’s freedom pending trial a prohibition on remarks that could endanger FBI agents participating in the case. Prosecutors say those restrictions are necessary after Trump falsely claimed last month that the FBI was prepared to kill him when it searched his Florida estate, Mar-a-Lago, for classified documents two years ago.

But prosecutor David Harbach, a member of Smith’s team, encountered immediate pushback from U.S. District Judge Aileen Cannon, a Trump appointee whose handling of the case has generated intense scrutiny and has contributed to delays that make a trial before the November presidential election a virtual impossibility.

As I’ve said from the beginning, the case against Trump in Florida is probably the strongest of the four he is facing in terms of possibly delivering a guilty verdict that might hold up on appeal. After all, Trump actually did have classified documents in his possession at Mar-a-Lago. The fact that other high-profile political figures have done far worse without being charged isn’t really a very strong defense.

But with that said, Jack Smith’s handling of the procedural elements of this case thus far has turned it into a complete joke. This latest episode is particularly appalling. Let’s first consider the fact that his motion is tied to an agreement to not lock Trump up while awaiting trial. In what world would a reasonable prosecutor seek to have Donald Trump locked up in that fashion? Is he trying to suggest that one of the most recognizable figures in the world who is in the middle of a presidential campaign is a flight risk? The only other risk that might make such a request reasonable would be a fear that the defendant might commit additional crimes while on the loose. Trump isn’t the President at the moment. He doesn’t have access to take any more classified documents. The entire idea is a farce.

Then there is the stated purpose of the requested gag order. Trump hasn’t “threatened” any FBI agents. He has complained about the way he was treated during the investigation and the fact that the FBI brought a warrant authorizing the use of deadly force if he or his Secret Service detail resisted. If someone else decides to threaten the FBI over this, that’s not Trump’s fault. And if they don’t like him complaining about it, perhaps they shouldn’t have included that deadly force clause in the first place.

Prosecutor David Harbach has been handling the procedural motions for Jack Smith thus far. It sounds as if he’s been receiving a chilly reception from Judge Cannon. At one point yesterday, he was compelled to apologize to the judge for his unprofessional behavior after becoming frustrated by her questions related to his demands. The process has run into one delay after another and the trial is competing for space on the calendar against three other trials. Most observers don’t believe that this one stands a chance of getting underway before the election. After the election, the entire question may become moot anyway.