Trump’s First Amendment Rights: Prosecutors Clash with Judge 

A federal prosecutor in former President Donald Trump’s classified documents case clashed with the judge Monday as the judge questioned a request to block the former president from threatening comments about law enforcement agents involved in the investigation.

Special counsel Jack Smith’s team is looking to make a prohibition on remarks that could potentially endanger agents participating in the case as a condition of Trump’s freedom pending a trial.

Prosecutors say the restrictions are needed after Trump “falsely” claimed last month the FBI was prepared to kill him when it searched his Mar-a-Lago Florida estate for classified documents two years ago.

Prosecutor David Harbach, a member of Smith’s team, encountered immediate pushback from U.S. District Judge Aileen Cannon, who has handled the case and faced intense scrutiny.

The judge questioned Harbach about how she could create an order that didn’t run afoul of whether prosecutors could prove a direct link between Trump’s comments and actions that could follow and his First Amendment rights.

“There still needs to be a correlation between the alleged dangerous comments and the risk” to public safety, said Cannon.

As Harbach tried at one point to rattle off multiple rationales that he said existed to restrict Trump’s speech, Cannon frequently interrupted the prosecutor, visibly exasperating the prosecutor, who noted that “I’ve got one reason out so far.”

Cannon rebuked the comment, saying, “Mr. Harbach, I don’t appreciate your tone.” She continued, saying that if he could not behave more professionally, one of his colleagues could take over.

Harbach completed his arguments and later apologized to the judge, saying he was not meant to be unprofessional.

Defense lawyer Todd Blanche disputed that Donald Trump’s comments posed an imminent threat to anyone in law enforcement and said the request by prosecutors would have a “chilling” effect. Trump is the presumptive GOP presidential nominee and is set to debate Democrat President Joe Biden on Thursday.

The former president wasn’t required to be present for the hearing and was not in attendance.

Trump’s speech has had legal consequences in other cases. The New York judge presiding over Trump’s business records trial, during which he was convicted of 34 felony counts, fined him $10,000 for violating a gag order that blocked him from verbal attacks on jurors and witnesses. A Washington federal judge handling his election subversion case imposed a similar gag order last year that an appeals court upheld later.

It wasn’t clear immediately when Cannon might rule. The arguments were part of a three-day hearing that started Friday to deal with numerous unresolved legal issues that have piled up in a case set for trial last month but have been snarled by a plodding pace and delays.

Cannon postponed the trial indefinitely, and it’s all but guaranteed it won’t take place before the November presidential election.

Trump faces dozens of charges regarding classified records

The former president faces dozens of felony charges accusing him of illegally keeping top-secret records at Mar-a-Lago and obstructing efforts by the FBI to get them back. Given the wealth of evidence prosecutors have put forward, several legal experts have regarded the case as the most straightforward of the four cases against Trump. He has pleaded not guilty in all. However, Cannon has been slow to rule on many motions and has entertained defense requests that prosecutors have labeled meritless.

Last month, Smith’s team objected after Trump claimed the FBI was set to kill him while executing a search warrant of Mar-a-Lago that was court-authorized on August 8, 2022. Trump was referencing boilerplate language from FBI policy that blocks the use of deadly force except when the officer searching has a reason that the “subject of such force poses an imminent danger of death or serious physical injury to the officer or another person.”

Former President Trump claimed in a fundraising email that Joe Biden was “locked & loaded, ready to take me out & put my family in danger.”

Prosecutors argued such comments pose a foreseeable significant risk to law enforcement and cited examples of an attempted attack on an Ohio FBI office three days after the Mar-a-Lago search and the more recent arrest of a Trump supporter accused of using threats against an FBI agent who investigated Hunter Biden, son of the president.

“In our view, they are significant; they are dangerous,” said Harbach. “They present an imminent and foreseeable risk to the FBI agents in the case.”

Lawyers for Trump say prosecutors have failed to show his comments have endangered any FBI official who took part in the Mar-a-Lago search directly and that Trump was commenting generally on his belief that he’s the victim of political persecution instead of on specific individuals.

“It’s an attack on the decision made by his political rival to authorize a search by agents authorized to carry guns,” Blanche said.

The Justice Department has claimed that Biden is not involved in the investigation.