Former President Donald Trump has until June 14 to respond to the prosecution’s motion for a gag order in his classified documents case amid shrinking odds that the trial could take place before the November election.
Trump has faced gag orders in legal proceedings in New York and Washington, D.C. – and was hit with fines for violating orders in his criminal hush-money trial and his civil fraud case. He's repeatedly called the gag orders unconstitutional and challenged them in court.
Some experts have questioned the constitutionality of a potential gag order in the Florida case overseen by U.S. District Judge Aileen Cannon.
“The problem is that the only court that seems to take the constitutional issues seriously is the Supreme Court, and getting to the Supreme Court is a long way away,” Syracuse University law professor Gregory Germain told Salon.
But Germain said a gag order is less likely in the classified documents handling case for a different reason.
“Judge Cannon’s very unlikely to grant it just because she seems like she’s pretty biased in terms of Trump’s favor,” he told Salon.
Lyrissa Lidsky, constitutional law professor at the University of Florida, said Cannon could point to First Amendment concerns.
“We're very, very suspicious of gag orders, because they go into place before there's been a full adjudication of wrongfulness of the speech at issue,” Lidsky said. “Gag orders are rarely resorted to because they're presumptively unconstitutional under the First Amendment.”
The 40 charges against Trump, stemming from the discovery of classified documents at Mar-a-Lago after he left office, have been stuck in limbo since Cannon indefinitely pushed back the trial date in May.
An unsealed legal filing from the Trump defense described the FBI’s 2022 raid on Mar-a-Lago and led to Trump making claims that President Joe Biden was “locked & loaded ready to take me out."
But there is no evidence of a plot to kill Trump, as The Associated Press reported. Trump was pointing to boilerplate language about “use of deadly force” in the operations order for the Mar-a-Lago raid. It’s standard to include that language – which sets out Department of Justice use-of-force policy – in those orders.
Lidsky said judges overseeing the Trump cases are faced with a “very unusual scenario.”
“It's the rare criminal defendant that continues criticizing the entire process while the process is taking place,” Lidsky said. “How many criminal defendants do you see who just keep going out there on social media, basically taking it to everybody involved in the process? That's just not a very common strategy that criminal defendants resort to for fear that it might backfire.”
Last week, Cannon dismissed special counsel Jack Smith’s request for a gag order, writing that “the Court finds the Special Counsel’s pro forma ‘conferral’ to be wholly lacking in substance and professional courtesy… Sufficient time needs to be afford to permit reasonable evaluation of the requested relief by opposing counsel and to allow for adequate follow-up discussion as necessary about the specific factual and legal basis underlying the motion.”
Smith refiled the motion Friday, and Cannon gave Trump until June 14 to respond.
Smith's motion asked Cannon to modify Trump’s conditions of release to ensure he cannot “make statements that pose a significant, imminent, and foreseeable danger to law enforcement agents participating in the investigation and prosecution of this case.”
“The Government’s request is necessary because of several intentionally false and inflammatory statements recently made by Trump that distort the circumstances under which the Federal Bureau of Investigation planned and executed the search warrant at Mar-a-Lago,” the motion reads. “Those statements create a grossly misleading impression about the intentions and conduct of federal law enforcement agents—falsely suggesting that they were complicit in a plot to assassinate him and expose those agents, some of whom will be witnesses at trial, to the risk of threats, violence, and harassment.”
The motion says Trump’s “deceptive and inflammatory claims” expose law enforcement agents to “the sort of threats and harassment that have occurred when other participants in legal proceedings against Trump have been targeted by his invective.”
The gag order would “fully comport” with the First Amendment, the motion argues, adding that Trump “‘does not have an unlimited right to to speak.’”
Smith’s motion says whether a particular Trump statement would “pose a significant, imminent and foreseeable danger” to law enforcement agents would be “‘determined by reference to the statement’s full context.’”
“But that condition would clearly prohibit further statements deceptively claiming that the agents involved in the execution of the search warrant were engaged in an effort to kill him, his family, or Secret Service agents,” reads the motion.
Prosecutors are also arguing that criminal courts must take steps to limit the influence of “prejudicial outside interferences” on the trial process.
Neama Rahmani, an attorney and former DOJ prosecutor, called a gag order “warranted.”
“He has arguably threatened witnesses, or dissuaded them from testifying, and we know that his supporters can — some of them can be extreme, so protecting the safety of the witnesses and the integrity of the proceedings is very important,” Rahmani said. “Any other judge would have probably granted this order. It's not a controversial order. Don't say or do things that may put witnesses in harm's way. But we know that Judge Cannon has sided with Trump's defense team on almost every step of the way.”
Rahmani said that courts have upheld gag orders to protect criminal trials.
“Trump has been given a lot more leeway than any other criminal defendant,” Rahmani said. “You or I would be held in contempt in custody by now.”
Lidsky said gag orders have to be narrowly written and sufficiently justified to protect fair trial rights.
“The gag orders in New York were, ostensibly, issued to protect the fair trial rights of everybody concerned, to make sure that the trial process was not tainted by out-of-court statements influencing witnesses or influencing other parts of the proceeding,” she said. In contrast: “the gag order sought here seems to be tailored to protecting certain personnel involved in the process."
“Some of the claims are that law enforcement needs are getting threats because of statements that the defendant has made,” Lidsky said. “And that's a very unusual scenario.”
However, Smith’s motion does state that some of the law enforcement agents “will be witnesses at trial.”
Trump’s “‘documented pattern of speech and its demonstrated real-time, real-world consequences, have often posed significant, imminent, and foreseeable threats to witnesses, particularly where, as here, they include deceptive and inflammatory claims,” reads the motion.
The motion also says that Trump has not disputed court authority to prohibit him from communicating with witnesses as a condition of pretrial release.
Still, Lidksy said she thinks "the judge will be skeptical of the request for a gag order because of the strength of the First Amendment rights at stake."
“This speech has not been adjudicated as falling into an unprotected category,” Lidsky said. “So, you might say, well: ‘The speech is a threat.’ A threat is a legal term. And to determine if something's a threat, you have to meet very high standards of intent and likelihood of violence ensuing or effect on the victim.”
Germain has written about the constitutionality of Trump's New York gag order, and whether gag orders can restrict out-of-court statements criticizing the court process or other participants.
Germain said the government may have “legitimate concerns” about how Trump's supporters could respond to his social media posts and campaign statements that baselessly claim that Biden's administration set out to kill him. But, Germain said, "free speech cases make it pretty clear that you can't restrict someone's speech because of how someone else might respond to it.”
Germain said prosecutors could have a case for a gag order if they can prove Trump himself is inciting violence. Germain defined the test of incitement as “imminent threat of immediate violence, and he's got to be advocating for that violence.”
Germain said instead of bringing up incitement, prosecutors are raising concern about his supporters’ potential behavior.
“So that's the problem I think the government has here is – yeah, Trump shouldn't be doing what he's doing, but it's not illegal,” Germain said.
Germain said it appears Trump is making political arguments about the propriety of the use-of-force order.
“If we're worried about how some crazy person might respond to somebody's political arguments, well, then there wouldn't be free speech to make political arguments,” he said.
