Jack Smith Tries Anew To Gag Trump and Force Judge Cannon To Worry Over an Appeal

Special Counsel Jack Smith’s filing on Friday evening of a second attempt to get a prior restraint put on President Trump’s speech in the Mar-a-Lago case doubles as a stratagem to keep the pressure on Judge Aileen Cannon. Mr. Smith’s previous gambit to amend the conditions for Trump’s release to bar him from making “statements that pose a significant, imminent, and foreseeable danger to law enforcement agents” was denied without prejudice, meaning he could file it again, as he has now done.Judge Cannon allowed space for a second sally because her first rejection centered on the manner of Mr. Smith’s filing, not the merits of his arguments. Her evaluation of his method, though, was scathing. She called it “wholly lacking in substance and professional courtesy.” The prosecutor failed, she wrote, to engage in “meaningful conferral” with Trump’s team.In threatening sanctions, Judge Cannon impressed upon the special counsel that “any future, non-emergency motion brought in this case … shall not be filed absent meaningful, timely, and professional courtesy.” Emails furnished to the court by Trump’s attorney, Todd Blanche, disclose that the filing of the request on Memorial Day, with little warning, left defense counsel “actually speechless.” This new filing contains a certificate attesting to conferral. By insisting that Judge Cannon weigh the merits of the request, Mr. Smith could be angling to deliver a jolt to the case, which is mired in an indefinite delay and features a hearing schedule that appears to be tilted toward Trump. If she denies his request — prior restraints are constitutionally disfavored as abridgments on the First Amendment — he is likely to appeal to the 11th Appeals Circuit.Such a request for review can be filed immediately, and would present Judge Cannon with the possibility of being overruled by circuit riders. It would not be the first time. That same tribunal, earlier in this case, voided her appointment of a special master to supervise the collection of evidence at Mar-a-Lago. The 11th Circuit panel reckoned that her order violated “bedrock separation-of-powers limitations.”Mr. Smith has telegraphed this intent before, in relation to the redaction of witness information in court filings. After Judge Cannon denied that request, the special counsel requested that she reconsider and intimated that if she did not, he would appeal for a writ of mandamus from the 11th Circuit to compel her to act. She acceded to his request rather than face that possibility.Prior restraints on Trump’s speech — in the form of gag orders, not amendments to his conditions of release — are in place at the District of Columbia and Manhattan. The 45th president has called both unconstitutional restrictions on his ability to speak, and interference with respect to his presidential campaign. This motion, like its predecessor, argues that Trump’s “repeated mischaracterization” of the FBI’s authorization of force — if necessary — in respect of the Mar-a-Lago raid as “an attempt to kill him, his family, and Secret Service agents has endangered law enforcement officers.” In a fundraising email, the 45th president called the FBI “locked & loaded ready to take me out.” The special counsel also points to Trump’s contentions in that email that agents were “AUTHORIZED TO SHOOT ME” and were “just itching to do the unthinkable.” The prosecutor presses the argument that the former president’s “deceptive and inflammatory assertions irresponsibly put a target on the backs of the FBI agents involved in this case.”

Jack Smith Tries Anew To Gag Trump and Force Judge Cannon To Worry Over an Appeal

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