Judge Denies Limited Gag Order Request in Trump Documents Case

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A federal judge on Tuesday temporarily denied a request by prosecutors to bar former President Donald J. Trump from making statements that might endanger law enforcement agents working on the case in which he stands accused of illegally holding on to classified documents after he left office.

The decision by the judge, Aileen M. Cannon, was made solely on the procedural grounds that prosecutors working for the special counsel, Jack Smith, had failed to properly inform Mr. Trump’s lawyers before making their request. It left open the possibility that the prosecution could try again to restrict Mr. Trump’s remarks about the agents if it follows the procedural rules.

As part of her decision, Judge Cannon also temporarily denied an attempt by Mr. Trump’s legal team to push back against the government. Mr. Trump’s lawyers had filed a counter-motion seeking to have the prosecutors’ request stricken from the record and to have sanctions imposed on Mr. Smith and his deputies for failing to follow the proper procedure.

Even though Judge Cannon’s ruling rebuked Mr. Smith for having ignored “professional courtesy” by failing to properly follow the process for informing defense lawyers of its request, it left the underlying issues in the whirlwind spat untouched. Those remain largely where they stood when the dispute between the defense and prosecution began on Friday evening.

It was then, at the start of the holiday weekend, that Mr. Smith’s prosecutors asked Judge Cannon to undertake a dramatic new step in the case: to revise the conditions of Mr. Trump’s release to keep him from making any public statements that could threaten or otherwise harm the F.B.I. agents working on the classified documents case.

The request came after Mr. Trump claimed in social media and fund-raising appeals, without basis, that the bureau had authorized agents to kill him during their August 2022 search of Mar-a-Lago, his private club and residence in Florida.

Prosecutors asserted to Judge Cannon that the former president’s remarks — including one in which he falsely claimed that agents were “locked & loaded ready to take me out” — were a “grossly misleading” misinterpretation of an F.B.I. operational plan for the search.

The request by Mr. Smith marked the first time that prosecutors had requested anything resembling a gag order in the classified documents case. Mr. Trump is facing gag orders in two of his other criminal proceedings: a federal case in Washington in which he stands accused of plotting to overturn the 2020 election and his trial in Manhattan on charges of covering up a hush money payment to a porn actress made on the eve of the 2016 election.

On Monday evening, two days after prosecutors went to Judge Cannon with their limited request to silence Mr. Trump, his lawyers fired back with a motion of their own, asking to have Mr. Smith and his team held in contempt.

In the motion, Mr. Trump’s lawyers called Mr. Smith’s request “an extraordinary, unprecedented and unconstitutional censorship application” that “unjustly targets President Trump’s campaign speech while he is the leading candidate for the presidency.”

They also pointed out that prosecutors had pushed ahead with filing the request at 8 p.m. on Friday, declining their appeal to wait until the holiday weekend was over to discuss it.

As she has done several times before, Judge Cannon used her order on Tuesday to criticize Mr. Smith, noting that his “pro forma ‘conferral’” with Mr. Trump’s lawyers was “wholly lacking in substance and professional courtesy.”

“It should go without saying that meaningful conferral is not a perfunctory exercise,” Judge Cannon wrote, adding that this was especially true when the issue at hand — curbing the speech of a former president running again for office — had been raised “for the first time in this proceeding.”

In her order, Judge Cannon included a new and unusual requirement for any future motions. She told the defense and prosecution that each filing would have to include a brief, verbatim statement from their adversary on how the process of conferral had gone.



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