As tensions flare in a Fort Pierce courtroom over pre-trial motions in Trump's classified documents case, a former federal prosecutor says a prosecutor's frustrated tone isn't enough for U.S. District Judge Aileen Cannon to order him replaced.
A prosecutor on special counsel Jack Smith's team apologized Monday for unprofessional conduct as he asked the court to limit Trump's statements about law enforcement agents, according to the South Florida Sun Sentinel.
Former federal prosecutor Neama Rahmani told Salon that he's not surprised that prosecutors are "frustrated."
"They're dealing with a judge who is unlike any other judge," Rahmani said. "She is entertaining some ridiculous arguments. She's allowed outsiders who really have nothing to do with the case, to submit briefs and to argue. No judge would allow that."
University of Miami School of Law Craig Trocino said judges do have to keep control of a courtroom — and that it's common in high-profile cases for tensions to overrun.
Still, he said that lawyers typically avoid doing anything that could antagonize a judge: "Lawyers who've been practicing for a long time know that the judge can get away with saying whatever they want to you, and you can't."
The trial remains stuck in limbo after Cannon – a Trump appointee – indefinitely pushed the trial date back in May. Trump pleaded not guilty last year to 40 criminal charges stemming from the discovery of classified documents at Mar-a-Lago after he left office.
"She's made it clear that she doesn't really care how long this trial takes," Rahmani said. "So there's a lot of frustration."
The newspaper reported that Harbach sounded "irritated" as Cannon pressed him to link Trump's comments and threats against law enforcement agents.
Cannon told Harbach she didn't "appreciate" his tone when he said he had not stated all his examples yet.
And Cannon said this wasn't the first example of such a dispute over tone, telling Harbach: "We have been here before."
According to the Sun Sentinel, Cannon said a colleague could instead take his place.
Harbach later said: “I just want to apologize about earlier. I didn’t mean to be unprofessional. I’m sorry about that.”
Trocino said he's heard "much, much worse" in state court — including lawyers yelling at each other. But he said "federal court is a different beast" and that he personally wouldn't have responded to the judge like Harbach did.
"You can't respond in that in that manner, you know, but in the grand scheme of things, I didn't think it was horrible," he said.
He further explained: "It's the type of thing where you bite your lip, you do what you have to do, and then when you tell the story later, you say: 'What I should have said was,' and then everybody laughs about it."
Trocino said he doesn't believe that the judge could have Harbach replaced for "a fairly innocuous comment."
He said a judge could ask for a prosecutor to be replaced. "But the prosecution's under no obligation to do that," he said.
Trocino said in extreme circumstances, judges could say a lawyer is no longer involved in a case. He said in a recent Miami state-level criminal case, a judge decided to disqualify two prosecutors.
"That's a situation where the judge was was actually asked to take action and had a long hearing, hundreds of pages of transcripts, and made that determination, and that litigation is still ongoing," Trocino said.
Rahmani said in his view, Harbach should not be replaced.
"Judges have a lot of judges have a lot of discretion, but to order a particular attorney off the case because of what I would consider advocacy, that's something that will probably get reversed," Rahmani said.
Rahmani said judges need "to be a little more thick-skinned."
"There's nothing that has crossed the line, in my opinion," he said. "And if anything, the judge herself has been unprofessional and kind of criticizing the prosecution in a way that, again, most of the judges would not."
Smith is seeking the court to approve a motion asking 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.”
Smith referenced Trump’s comments concerning the Mar-a-Lago raid – claims which have included 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.
