Judge Cannon shreds Jack Smith over violation of court rules, denies gag order request against Trump

 May 29, 2024

On the Friday before the Memorial Day holiday weekend, Special Counsel Jack Smith's office filed a motion requesting a gag order against former President Donald Trump in the classified documents case in South Florida.

As noted in the vehement objection by Trump's defense lawyers, that motion was filed without a meeting or conferral between the two sides, and as such, District Judge Aileen Cannon promptly dismissed the gag order request on Tuesday, according to Fox News.

In addition to the denial without prejudice, meaning the request can be made again later, the judge once again admonished prosecutors for violating the court's rules on filing procedures and imposed strict requirements on all future filings, backed with the threat of sanctions, to ensure proper procedures will be followed going forward.

Special Counsel's Office requests new gag order on Trump

Late Friday evening, the Special Counsel's Office submitted a 12-page motion to modify former President Trump's conditions of release, "to make clear that he may not make statements that pose a significant, imminent, and foreseeable danger to law enforcement agents participating in the investigation and prosecution of this case."

Necessitating the request, according to prosecutors, were Trump's "several intentionally false and inflammatory statements" about the inclusion of a lethal use-of-force policy in the FBI's search warrant for the August 2022 raid on Trump's Mar-a-Lago residence.

"Those statements create a grossly misleading impression about the intentions and conduct of federal law enforcement agents -- falsely suggesting that they were complicit in a plot to assassinate him -- and expose those agents, some of whom will be witnesses at trial, to the risk of threats, violence, and harassment," the prosecution added.

Trump's attorneys object to manner and timing of gag order request

On Monday, Trump's attorneys responded with a 15-page motion in opposition to the Special Counsel's filing that "improperly asks the Court to impose an unconstitutional gag order on President Trump, as a condition of his pretrial release, based on vague and unsupported assertions about threats to law enforcement personnel whose names have been redacted from public filings and whose identities are already subject to a protective order."

Given the "blatant violation" of local rules requiring conferral before filing and "related warnings from the Court, the Court should strike the Motion, make civil contempt findings as to all government attorneys who participated in the decision to file the Motion without meaningful conferral, and impose sanctions after holding an evidentiary hearing regarding the purpose and intent behind the Office’s decision to willfully disregard required procedures."

The filing by Trump's attorneys, supported by an email chain submitted as an attached exhibit, detailed how prosecutors had informed them at 5:30 pm on the Friday before the holiday weekend of their motion to request a gag order and refused offers to meet and confer on the matter over the weekend.

"Pursuant to the Local Rules, the Special Counsel’s Office was required to meaningfully confer with us regarding those issues prior to filing the Motion. They did not," the response filing added. "Instead, they persisted with a troubling pattern of pursuing media coverage rather than justice. Such an approach, by prosecutors sworn to uphold the law, should have no place in Your Honor’s courtroom. Such an approach requires consequences to ensure fundamental fairness."

Judge Cannon admonishes prosecutors ... again

On Tuesday, in a paperless order on the docket, Judge Cannon ruled that she was "denying without prejudice for lack of meaningful conferral" the gag order request by the Special Counsel's Office. She wrote that after reviewing the motion, the response from the defense, and the attached email chain, "the Court finds the Special Counsel's pro forma 'conferral' to be wholly lacking in substance and professional courtesy.

"It should go without saying that meaningful conferral is not a perfunctory exercise. Sufficient time needs to be afforded to permit reasonable evaluation of the requested relief by opposing counsel and to allow for adequate follow-up discussion as necessary about the specific factual and legal basis underlying the motion," the judge continued. "This is so even when a party 'assume[s]' the opposing party will oppose the proposed motion, and it applies with additional force when the relief sought -- at issue for the first time in this proceeding and raised in a procedurally distinct manner than in cited cases -- implicates substantive and/or Constitutional questions."

"Because the filing of the Special Counsel's Motion did not adhere to these basic requirements, it is due to be denied without prejudice," Cannon reiterated. "Any future, non-emergency motion brought in this case -- whether on the topic of release conditions or anything else -- shall not be filed absent meaningful, timely, and professional conferral."

The judge added, "Moreover, all certificates of conference going forward shall (1) appear in a separate section at the end of the motion, not embedded in editorialized footnotes; (2) specify, in objective terms, the exact timing, method, and substance of the conferral conducted; and (3) include, if requested by opposing counsel, no more than 200 words verbatim from the opposing side on the subject of conferral, again in objective terms. Failure to comply with these requirements may result in sanctions."

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