Trump asserts constitutional right to harass FBI agents
And Judge Cannon is cool with it.
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This week Donald Trump is in two courts defending his sacred right to call in troll storms on his enemies — even if those enemies are witnesses against him in ongoing criminal cases.
In the stolen documents case in Florida, Trump called the special counsel’s motion to stop him from spreading vicious lies about the FBI agents who searched Mar-a-Lago a “naked effort to impose totalitarian censorship of core political speech, under threat of incarceration, in a clear attempt to silence President Trump’s arguments to the American people about the outrageous nature of this investigation and prosecution.”
And in the New York prosecution for false business records, his lawyers argued that “The suggestion that President Trump would be subject to unlawful prior restraints in a post-trial presidential debate is one of the clearest illustrations that the District Attorney, like President Biden and their overlapping cast of associates, are relying on the Gag Order as part of a lawfare strategy to try to accomplish in courtrooms what they have been unsuccessfully pursuing on the campaign trial.”
This feigned indignation covers up the inherent violence of Trump’s position. In both cases, he demands the right to paint a target on the back of law enforcement agents, line prosecutors, and even jurors. Not only does he call it “legitimate” political speech, he insists it’s vital to his campaign to lie and target civil servants, endangering them and their families.
Indeed, it’s not that he’s heedless of the danger he puts these targets in — the danger is a feature, not a bug.
The Florida order
In Florida, Special Counsel Jack Smith moved to bar Trump from accusing the FBI agents who executed the search warrant at Mar-a-Lago of trying to assassinate him.
The backstory is that on May 21, Trump claimed to have been “shown Reports” that President Biden “AUTHORIZED THE FBI TO USE DEADLY (LETHAL) FORCE” back in August 2022 when it raided the private club where he was storing stolen government documents.
In fact, the “Report” was boilerplate language from the FBI’s operations order for the warrant, attached as an exhibit to his own motion to suppress the evidence kicked up on that raid. The FBI took great care to execute the warrant at a time when the club was shuttered for the season and there was no prospect that the former president and his family would be there. Nevertheless, Trump and his MAGA henchmen spent several news cycles claiming that President Biden had sent in agents “locked and loaded” ready to shoot him.
Those agents will necessarily be witnesses at the trial (should it ever happen), and yet Trump is falsely accusing them of attempted murder. Two of them were already publicly outed back in 2022 when someone gave the unredacted warrant to Breitbart and a former Trump aide, both of whom published it with the agents’ signatures visible.
As the special counsel noted in a brief:
Trump suggests that the agents in this case face no danger since their names are currently redacted from public filings. That argument ignores that Trump’s former aide twice (after the search and after the June 2023 indictment) disseminated the names of two FBI agents on this case, their dates of birth, their work email addresses, and supposed links to social media accounts of their family members.
After the agents were doxxed, they and their families were threatened and harassed, which influenced Magistrate Judge Bruce Reinhart’s decision to keep under seal parts of the affidavit in support of the warrant.
“Given the public notoriety and controversy about this search, it is likely that even witnesses who are not expressly named in the Affidavit would be quickly and broadly identified over social media and other communication channels, which could lead to them being harassed and intimidated,” he wrote.
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Judges in New York state court, as well as the US District Court in DC and the DC Circuit, have all found that Trump’s public attacks endanger their targets, and that this provides ample legal justification to place minimal restrictions on his speech. And so, citing the gag order approved by the DC Circuit in the election interference case, the government asked Judge Cannon to modify the conditions of Trump’s release to bar him from making further false, inflammatory statements about the agents who will be witnesses against him.
Trump responded in his typical incendiary fashion, accusing the special counsel of a “shocking display of overreach and disregard for the Constitution” and seeking to restrict his “constitutionally protected campaign speech, in a manner that someone in the government disagreed with and does not like.”
Trump insists that his lies about the FBI are “core political speech” protected by the First Amendment. He also deliberately distorts the “heckler’s veto,” as he has done many times before, claiming that he cannot be silenced to prevent foreseeable, violent acts by his supporters. But as the DC Circuit wrote in its order upholding the gag order in the election interference case, “That doctrine prohibits restraining speech on the grounds that it ‘might offend a hostile mob’ hearing the message.”
“The harm the district court identified here was not that some members of the public who oppose Mr. Trump’s message might react violently and try to shut down his speech,” they went on. “The concern was instead ‘how predictable’ it has become that some (but certainly not all, or even many) of Mr. Trump’s followers will act minaciously in response to his words.”
The DC Circuit judges noted that the trial judge need not find that the defendant’s statements had led to violent attacks in this case, they could infer the danger from attacks on everyone from Atlanta poll workers, to grand jurors in Fulton County, to the jury foreperson doxxed in the Roger Stone case. Applying the standard set out by the Supreme Court in Gentile v. State Bar of Nevada, the judges blessed the gag order based on a finding that Trump’s attacks on witnesses, jurors, and court staff posed a “substantial likelihood of materially prejudicing" the proceedings.
But that may not matter to Judge Aileen Cannon, who showed marked hostility to this (and every other) prosecutorial motion at a hearing Monday in Fort Pierce, where she waved away the ample record of Trump endangering witnesses and law enforcement, as well as an exhibit showing threats to FBI agents by a man who was killed in an attempted attack on an FBI building in Cincinnati just days after the warrant on Mar-a-Lago was executed.
“There still needs to be a factual connection between A and B,” the judge said, rebuffing Assistant US Attorney David Harbach’s efforts to make the government’s case.
“Mr. Harbach, I don’t appreciate your tone,” she fumed in response to the complaint that she wasn’t letting the government articulate its position, according to Just Security’s Adam Klasfeld, who was in the courtroom. “I expect decorum in this courtroom at all times. If you cannot do that, I’m sure one of your colleagues can take up this motion.”
For their part, Trump’s lawyers consistently attempted to muddy the waters by claiming that the prosecution is trying to stifle “critique of Joe Biden and his Justice Department,” rather than asking for a narrow ban on doxxing FBI agents. Indeed, mischaracterizing the government’s request is part of Trump’s go-to playbook. And it’s a playbook that’s worked well with this jurist so far.
It seems highly unlikely that Cannon will do anything to curb Trump’s speech, until someone else gets hurt — and, if and when that happens, she will blame the government for failing to properly argue in favor of the gag order.
New York gag
Unlike Judge Cannon, Justice Juan Merchan managed to conduct the New York trial in expeditious fashion, wielding a gag order to ensure the safety of the witnesses, jurors, and court staff. The legality of that order was repeatedly affirmed by New York’s appellate court, including most recently on June 18, when it found that “no substantial constitutional question” was implicated.
But now that the trial is over, Trump argues that this “extraordinary, unprecedented, and unwarranted restriction on the constitutionally protected speech of the leading candidate in the 2024 presidential election” must be lifted to protect his political speech.
“President Trump’s opponents and adversaries are using the Gag Order as a political sword to attack President Trump with reference to this case, on the understanding that his ability to mount a detailed response is severely restricted by the Gag Order,” his lawyers wrote, before accusing the District Attorney’s office of timing its responses to ensure that the gag order would be in effect during Thursday’s presidential debate.
“Continued imposition of the Gag Order cannot be justified based on speculation that President Trump’s protected political speech will cause independent third parties to engage in harassing communications toward those mentioned by President Trump,” they hammered on. “That logic reflects an unconstitutional heckler’s veto, which is anathema to bedrock free-speech principles under the New York Constitution and the First Amendment.” (Again, NO.)
The DA responded that it had no objection to terminating the order with respect to Stormy Daniels and Michael Cohen, both of whom have concluded their testimony and resumed attacking Trump on social media. But the prosecution objected to allowing Trump to resume attacking the line prosecutors, jurors, court staff, and their families, as he did routinely before the gag order was in place.
The DA also noted that Trump blatantly lied about coordination between District Attorney Alvin Bragg’s office and the Biden campaign and grossly mischaracterized the gag as impacting his ability to respond to political attacks by President Biden.
Because this is New York and not Florida, Justice Merchan managed to rule within a week. Amazing! Yesterday, he held that the the protection of witnesses and jurors is no longer necessary, although he cautioned the former president that a protective order covering jurors’ personally identifying information remains in effect. But court staff and prosecutors will continue to work through sentencing on July 11, and thus the provisions governing them and their families still pertain.
If Trump was hoping to use the gag order as an excuse to get out of the debate, as some commentators have suggested he will, that excuse is now gone. And thanks to Judge Cannon, he’s free to get on the debate stage and accuse the FBI of trying to kill him. But the prosecutors displayed an indecorous tone at the hearing, so …
That’s it for today
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Thanks for reading.
I will still be shocked if Trump shows up for the debate. Thanks for laying all this out.
I wonder about Cannon and what has been promised or already given to her for her obvious favor towards Trump's pitiful defense.