The special counsel is reluctant to limit Trump's attacks on FBI agents

FORT PIERCE, Fla. — Federal prosecutors struggled Monday to make a compelling case for new restrictions on Donald Trump that would prevent him from publicly attacking law enforcement officials, even as an attorney working for special counsel Jack Smith argued that the former president's claims are false, inflammatory and inviting violence against FBI agents.

U.S. District Judge Aileen M. Cannon did not immediately rule on the motion to add a new condition to Trump's bail at his upcoming trial for alleged mishandling of classified documents. Her approach suggested that a decision is unlikely to come before Thursday's scheduled debate between Trump, the presumptive Republican presidential nominee, and President Biden, his Democratic rival.

The hearing, which lasted about an hour and a half, came in response to Smith's request to modify Trump's bail to prevent statements that would pose an immediate danger to law enforcement officers who worked on the documents case.

Smith made the request last month after Trump suggested on social media that FBI agents were authorized or hoped to use lethal force when they searched his Florida home in 2022 for classified documents. In that message, Trump posted that Biden's Justice Department had “authorized THE FBI.” USE DEADLY (DEADLY) FORCE. NOW WE KNOW FOR CERTAIN THAT JOE BIDEN IS A SERIOUS THREAT TO DEMOCRACY.” The message also called Biden mentally unfit.

Trump's accusation — an accusation echoed and amplified by many of his supporters — was based on a standard description of the limits on the use of force by federal agents involved in the search for Mar-a-Lago. That same legal language has been used for numerous other FBI operations, including a voluntary search of Biden's home in another investigation into classified documents.

Trump has already been granted a gag order in two of his other criminal cases, and while Smith's latest request is not technically for a gag order, it would function in similar ways. The main difference is that any violations of his bail conditions could subject him to prison more quickly.

Prosecutor David Harbach argued that Trump's statements about FBI agents involved in the classified documents case are “dangerous” to investigators who could testify against the former president, who faces 40 charges of intentionally withholding information classified information after he leaves the White House and hindering the government's efforts to retrieve them.

Harbach's presentation was uneven and the judge at one point responded sternly to his complaint that he was not allowed to fully describe his reasoning.

“Mr. Harbach, I don't appreciate your tone,” Cannon said, adding that she expected decorum at all times. If you can't do that, I'm sure one of your colleagues can.” Harbach later apologized to the judge.

Whatever line there may be between a person's freedom of speech and the restrictions a criminal defendant has on talking about his case, Harbach argued, Trump's statements “don't come close to crossing the line.”

The prosecutor called Trump's social media “an extremely powerful tool” that he brags about, well aware of how his followers will react. “He knows, he knows,” Harbach insisted, waving his hand for emphasis. this is beyond irresponsible – it is dangerous.”

Cannon repeatedly suggested that a new restriction was not necessary, even though she had already agreed to remove the names of FBI agents from public court filings. Harbach responded that some of the names were public on the Internet and that Cannon shouldn't wait for something terrible to happen before implementing the restrictions.

Trump attorney Todd Blanche argued that while the prosecutor continued to insist that it was clear that Trump's comments were dangerous, the line the special counsel wanted to draw was in reality not clear to anyone outside the special counsel's office. He said it was unfair to blame the presidential candidate for the actions of a handful of people who may be deranged.

“Of course, President Trump has absolutely no desire for anything bad to happen to law enforcement,” Blanche said. “It is a criticism of President Biden and his Justice Department and it is completely fair and protected political speech.”

Cannon said she would give the parties until Wednesday to submit additional evidence to support their arguments on the docket. The hearing took place after a morning session in which Trump's lawyers argued that Attorney General Merrick Garland had abused the Justice Department's special counsel regulation to prosecute Trump.

Similar arguments by other suspects charged by special prosecutors have been unsuccessful.

Cannon took a particular interest in how much special counsel appointments have cost the government, at one point calling it a “significant” amount, even though the totals represent a decline in Justice Department spending.

The most expensive special investigation in recent years, conducted by Robert S. Mueller III and targeting alleged Russian interference in the 2016 election, cost approximately $32 million over several years. The Justice Department's annual budget is over $35 billion – meaning that Mueller's work costs significantly less than 0.1 percent of the agency's expenditures.

Trump attorney Emil Bove argued that the Justice Department made a fundamental mistake by conducting a standalone special counsel investigation without adequate oversight.

“Our position is that there needs to be more congressional oversight … for the extraordinary things that are going on,” such as the silence order request, Bove said. “Who approved that? Was it the attorney general?”

During a hearing Friday on the constitutionality of the special counsel appointment, Bove argued that Smith had too much independence and said his nomination should have been approved by the Senate.

Cannon has shown an eagerness to delve into many of the legal issues raised by the defense, including some that are more commonly raised on appeal in other cases. Before becoming a judge, Cannon was a prosecutor who dealt with appellate issues, and long stretches of Monday morning's hearing sounded more like an argument before an appeals court than a court.

In response, the government's arguments were made Monday morning by James Pearce, an attorney from the special counsel's office with expertise in appellate matters.

Pearce said the defense's claims that Smith's office was not properly funded by the government were misleading and had no support in the case law. Even if the judge were to find a flaw in the process, he said: there would be no meaningful solution because the Justice Department could easily draw the necessary resources from another pool of public money.

At one point Cannon warned Pearce not to interrupt her as she spoke, but the general tenor of the morning hearing was polite, if somewhat annoying. Cannon did not immediately rule on the defense's argument for dismissing the charges.

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