Lawyers for Donald Trump are preparing to argue that special counsel Jack Smith has not proven a need for new restrictions on what the former president can say about his criminal classified documents case in Florida.
Federal prosecutors with Smith’s office and attorneys for Trump will argue before U.S. District Judge Aileen Cannon next week over the recent effort by Smith to modify the former president’s release conditions. Trump’s lawyers liken Smith’s request to a gag order due to its threat of placing narrow limits on his speech as he campaigns for another shot at the presidency this November.
Smith told Cannon on May 24 that Trump “falsely” claimed federal law enforcement agents were “complicit in a plot to assassinate him” when they executed a search warrant on Mar-a-Lago in August 2022. The filing came on the same day that Trump claimed the FBI was authorized to use “DEADLY (LETHAL) FORCE” during the raid, though the FBI released a statement on May 21 clarifying that the language Trump cited was part of a “standard policy statement” included in every search warrant the agency conducts.
Cannon told Smith the filing was initially improper because the special counsel did not confer with the defense, and the special counsel’s office attempted to file its motion again on May 31.
“A condition of release that prohibits the defendant from making statements posing a significant, imminent, and foreseeable danger to law enforcement agents participating in the investigation and prosecution of this case is warranted and necessary here,” Smith’s team wrote in its subsequent motion.
Trump’s legal team filed a motion responding to Smith’s request on Friday, saying that Smith “seeks to restrict President Donald Trump’s campaign speech as the first presidential debate approaches at the end of this month.”
Smith’s motion to modify Trump’s release conditions is not the only task the judge will have on her plate in the days ahead. Separately, she will hear oral arguments from three legal scholars on Friday over Trump’s argument that U.S. Attorney General Merrick Garland improperly appointed Smith.
And on Monday, Cannon will consider Trump’s challenge to the federal funding of Smith’s office, followed by the arguments over Smith’s request to modify Trump’s release conditions. The following day, she will hold another hearing over Trump’s request to toss out evidence gathered during the FBI raid and testimony given by Evan Corcoran, his former lead attorney, who Smith says Trump misled as part of an alleged effort to obstruct the government’s investigation.
Cannon is a Trump appointee who has largely been criticized by Democrats for her streak of decisions that have been perceived as helpful for the defense and her slow pace toward bringing the case to trial. But despite a series of small procedural wins the former president has received in her courtroom, she most recently shut down an effort on Monday by 24 Republican attorneys general who signed an amicus brief opposing Smith’s request to restrict Trump’s public statements.
It is unclear how soon Cannon will rule on Smith’s request to modify Trump’s release conditions. The Monday hearing will come just days before the first presidential debate between Trump and President Joe Biden on June 27. The former president is still under a separate gag order in New York even though a jury already convicted him last month on 34 counts of falsifying business records.
Legal experts told the Washington Examiner that Cannon’s decision to schedule a hearing one month after Smith’s initial request to modify release conditions may signal a lack of urgency over Smith’s request.
Former federal prosecutor Neama Rahmani said Smith’s request is “basically asking Trump not to do something that’s going to put law enforcement or witnesses in danger.”
“I’d say nine out of 10 judges, or eight out of 10 judges, would grant this motion,” Rahmani said. “Obviously, Cannon’s ruled in Trump’s favor at every possible turn so I don’t see that happening.”
Trump pleaded not guilty in June 2023 to a 37-count indictment stemming from his handling of classified records after prosecutors said he repeatedly declined to return troves of documents, some of which included classified markings, and that he made efforts to impede the government’s retrieval of those documents. He has also pleaded not guilty to one other federal indictment and an indictment in Fulton County, Georgia, accusing him of seeking to upend the Peach State’s 2020 election results.
The classified documents case was initially slated to head to trial in late May, but the deadline lapsed due to the number of pretrial disputes.
Meanwhile, the Supreme Court is poised to decide in the coming days whether Trump has some level of immunity from Smith’s separate case in Washington, D.C., alleging that the former president attempted to subvert the 2020 election.
If the Supreme Court remands the election subversion case back to U.S. District Judge Tanya Chutkan to conduct further fact-finding about which acts Trump may be immune from, Rahmani said Trump could file another motion to dismiss the case in Florida.
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Cannon issued an order in early May that set a timeline to resolve pretrial disputes by late July. But with the immunity dispute likely to be decided in just a matter of days, Trump could use it as a springboard to launch another appealable motion to dismiss the case in Florida, which, at the least, could result in more delays of the trial before Election Day.
“The case that’s most likely to go to trial next is the D.C. election fraud case,” Rahmani said. “I don’t think South Florida or Fulton County are going to happen anytime soon.”