Special Counsel Jack Smith’s request to modify the terms of President Trump’s release to “make clear that he may not make statements that pose a significant, imminent, and foreseeable danger to law enforcement agents” could set up an appeal to the United States Court of Appeals for the 11th Circuit. 

The petition is directed to Judge Aileen Cannon, who presides over the Mar-a-Lago documents case. Mr. Smith cites ”several intentionally false and inflammatory statements” that distort the “circumstances under which the Federal Bureau of Investigation planned and executed the search warrant at Mar-a-Lago.”

In asking that Mr. Trump be limited from discussing the G-Men affiliated with the case because the 45th president “falsely suggesting that they were complicit in a plot to assassinate him,” Mr. Smith is not asking for a gag order, but rather for Judge Cannon to amend the terms that allow Mr. Trump to remain a free man after his arrest for stashing classified documents at Mar-a-Lago. 

Mr. Smith cites, for ballast, what he calls Mr. Trump’s “dangerous campaign to smear law enforcement.” The special counsel maintains that the search of Mar-a-Lago was undertaken with “extraordinary care” and in “a professional and cooperative manner, at a time when Trump and his family were out of the state.”

In a brief to Judge Cannon, Mr. Trump cited extensively from the “Operations Order” that governed the possible use of force during the search. In an email, he wrote that agents were “AUTHORIZED TO SHOOT ME.” He has added that they were “just itching to do the unthinkable,” and were “locked & loaded ready to take me out & put my family in danger.”

Mr. Smith disputes that characterization. He argues that the “inclusion of that policy is routine practice to restrict the use of force, and it is attached to countless warrants across the country,” and that Mr. Trump’s accusations “have the potential to undermine the integrity of the proceedings as well as jeopardize the safety of law enforcement.” The prosecutor sees them as prelude to “unjustified and unacceptable risks.” 

The FBI Firearms Guide mandates that agents “must be armed when on official business,” unless “dictated by operational necessity.” They are “encouraged to be armed at all times.” Deadly force, though, is only warranted “when necessary, that is, when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury.” 

Federal law allows for judges to attach conditions to a defendant’s release pending trial, and Mr. Smith notes Judge Cannon’s “independent obligation to protect the integrity of this judicial proceeding,” The special counsel contends that Mr. Trump’s characterization of the search of his Palm Beach manse as a “plan to kill him, his family, and United States Secret Service agents” threatens that integrity. 

Mr. Smith acknowledges that limiting Mr. Trump’s speech as a condition for his release poses First Amendment concerns, but the prosecutor writes that “Mr. Trump does not have an unlimited right to speak” and that such limitations on expression are common on the runway to trial. Mr. Trump faces prior restraints on speech in his January 6 and hush money trials. 

The special counsel, though, could be thinking one step ahead. If Judge Cannon denies his request, he can immediately appeal to the 11th Circuit. Those riders will likely be sympathetic to an argument centered on safety. If Mr. Smith is feeling even bolder, he could use such a denial — should it come — as grounds for requesting that Judge Cannon be removed from the case.