During a two-hour hearing on Monday morning, U.S. District Judge Aileen Cannon, who is overseeing former President Donald Trump’s classified documents case, pressed government attorneys for more information about the funding of special counsel Jack Smith’s investigation. Judge Cannon expressed concerns that the funding might present a “separation of powers concern.”
The hearing was a continuation of Friday’s session, where defense attorneys sought to have the case dismissed on the grounds that Smith was unlawfully appointed as special counsel. Trump, who pleaded not guilty last year to 40 criminal counts related to his handling of classified materials after leaving the White House, has consistently denied all charges and labeled the probe a political witch hunt.
Defense lawyer Emil Bove argued that the funding of the special counsel’s office was unconstitutional because it relies on a “permanent indefinite appropriation” outside the normal budget process. “Is there any cap to the funding?” Judge Cannon asked. Bove responded, “No, and I think that is part of the reason … to be very wary of who can access it and why. There is no check on the scope of what’s going on here.”
As Bove questioned the constitutionality of the special counsel’s office, Smith himself sat just feet away in the courtroom, occasionally jotting down notes. Smith did not attend Friday’s hearing. While Cannon appeared skeptical of Bove’s argument at times, she pressed assistant special counsel James Pearce about the office’s budget. “When it’s limitless, I think there is a separation of powers concern,” Cannon remarked.
Pearce defended the merits of the defense’s argument, highlighting that the last eight special counsels have been funded and overseen through the same process as Smith’s. He claimed that the Department of Justice (DOJ) would commit to funding Smith’s case through the DOJ budget if needed. “It is the full commitment of the DOJ that the special counsel has the funding to continue this prosecution,” Pearce said, adding that a change in the funding source would result in “no effect or change whatsoever” to the case.
However, Bove argued that the DOJ funding the special counsel would result in a “very strong” response, including congressional action and additional motions from defense counsel. “It is difficult for me to imagine how that resolves the motion here,” Bove said. “I think there would be a very strong political response.”
Cannon appeared to backtrack on some of her comments during the hearing, stating, “I am not indicating anything. I am just trying to cover the scope of what has been briefed here.”
In the afternoon, Cannon heard arguments about imposing a gag order on Trump to prohibit statements that endanger law enforcement. Previewing his argument at the end of the morning hearing, Bove described the proposed gag order as a “truly extraordinary effort to gag [Trump’s] ability to speak at a debate and the campaign trail.”
The hearing on the special counsel’s request for a gag order against Trump ended without a ruling, but Judge Cannon had pointed questions for prosecutors. Cannon showed skepticism toward prosecutors’ arguments, asking where they saw a call to violence in Trump’s comments and saying that they needed to show some connecting facts between what the former president has said and the threats they are warning about.
The judge repeatedly sparred with prosecutor David Harbach, who she said was being snippy during his arguments. Cannon quickly stopped Harbach, telling him, “I don’t appreciate your tone.” She added that she would “appreciate decorum at all times” and said, “If you aren’t able to do that, I’m sure one of your colleagues can take up arguing this motion.” Harbach later apologized.
Trump’s defense attorney Todd Blanche argued that there were no threats to FBI agents in Trump’s email or social media posts cited by the government and claimed the Justice Department was trying to punish Trump for other people’s comments. “The attacks, very clearly, are against President Biden,” Blanche said of Trump’s communications at issue.
In his rebuttal argument, Harbach argued that Trump’s comments were “way out of bounds” and are “nothing like speech that should be protected by the First Amendment.” Judge Cannon noted that the statute prosecutors are citing for the gag order “still requires a finding” related to the potential risks to others, emphasizing that there needs to be a factual connection between Trump’s comments and potential threats.
Harbach said that while Trump was welcome to campaign, there should be certain limits when it comes to the safety of agents on the case. “Knock yourself out,” Harbach said about Trump’s campaigning. “But you don’t get to say things like that,” he said of Trump’s email and posts.
The hearing ended without a ruling from Cannon. Trump’s attorney said that prosecutors were trying to set a “dangerous precedent” by changing the former president’s conditions of release. Blanche argued that prosecutors are too vaguely defining what a threat is, making any potential new rules difficult to follow. “Steve Bannon making a comment is potentially the kind of thing that could send President Trump to jail,” Blanche said.
Before concluding his argument, Harbach apologized to Judge Cannon for being “unprofessional” earlier in the hearing. “I just want to apologize about earlier,” Harbach said. “I didn’t mean to be unprofessional. I’m sorry about that.”
Blanche argued that the former president never threatened FBI agents and that his rhetoric was aimed at President Joe Biden. “The attacks, very clearly, are against President Biden,” Blanche said of Trump’s posts and email at issue. Blanche also admitted that the Justice Department’s “deadly force” policy in place for the Mar-a-Lago search was standard for the execution of such search warrants.
Requesting the gag order, special counsel Jack Smith said that “deploying such knowingly false and inflammatory language in the combustible atmosphere that Trump has created poses an imminent danger to law enforcement that must be addressed before more violence occurs.”
Prosecutor Harbach said that Trump’s speech should be restricted because it “endangers the safety of others in the community.” Harbach read one of Trump’s social media posts about the FBI search of Mar-a-Lago in 2022, in which Trump baselessly said that the FBI was authorized to kill him. “The government is at a loss to conceive why Mr. Trump would say something so false, so inconceivable, or inviting of violence,” Harbach said, adding that Trump’s statements are “beyond irresponsible.”
“Where do you see a call for violence,” Cannon asked of the posts. Harbach responded that other posts and comments by Trump “ultimately result in all types of terrible things,” including threats or harassment of law enforcement.
Judge Cannon indicated she is skeptical of placing a gag order on Trump and asked prosecutors if they wanted to provide more evidence of the former president’s words leading to threats. The hearing is ongoing, and Cannon is not expected to rule today. She set a deadline for Wednesday for prosecutors to decide whether they want to provide her more evidence in the record around the gag order issue. Prosecutor Harbach said the Justice Department will tell the court by tomorrow.
The judge has said she wants to provide both sides “adequate opportunity to respond” each time more evidence about gag orders, threats, and other courts’ actions is brought into the Florida documents case. The situation highlights how Cannon keeps allowing more arguments and information into the case, often putting off making decisions for weeks.
Judge Cannon’s two-hour hearing Monday morning for Trump’s criminal case on classified documents became a close read of past special prosecutors and their funding, in the latest attempt from Trump’s team to invalidate the case against him.
Here are key things to know:
**Tough questions for Justice Department:** Though the judge was careful to say her questions shouldn’t imply she was leaning one way, Cannon pushed Justice Department attorney James Pearce to explain how much money the department has used for its work in the Trump criminal cases. The judge noted that even if the office discloses its spending publicly every six months, a financial disclosure that would encompass last fall through this March was overdue.
She also sought from prosecutors guidance on explaining the laws and regulations that governed past special prosecutors, at one point bringing up Watergate and the era of Janet Reno as attorney general. Cannon’s questions were so pointed toward Pearce, at one point the prosecutor mentioned how other courts have been overturned if they invalidated a government function in the way Cannon was probing, and said he hoped the Justice Department could provide additional written argument to the court if invalidating Smith was a serious possibility.
**Should Congress be more involved?** Trump is also aiming to bring Congress into the conversation. Trump attorney Emil Bove advocated at Monday’s hearing that the funding of the special counsel’s office should be subject to more oversight and scrutiny by Congress.
Source: CNN
