Three separate trial judges found the need to impose some sort of gag order against Donald Trump in rulings all affirmed by their respective appellate courts, but the former president’s record on the issue may be about to change.
On Monday afternoon, U.S. District Judge Aileen Cannon sharply questioned Special Counsel Jack Smith’s indirect approach to restrict Trump from making comments that prosecutors allege put federal officials working on the case in danger.
‘The Names Are Out There’
Unlike Trump’s other gag orders — in his New York criminal case, his New York civil fraud case, and his federal election interference case in Washington, D.C. — Smith has sought to change Trump’s conditions of release to bar him from making statements that would “pose a significant, imminent, and foreseeable danger to law enforcement agents participating in the investigation and prosecution of this case.”
Assistant Special Counsel David Harbach argued that such language would be “narrowly tailored” to address the unique threat posed by Trump’s “false” and “inflammatory” comments on Truth Social and a fundraising email about the FBI’s search of the Mar-a-Lago resort, which took place nearly two years ago in August 2022. On May 21, 2024, Trump falsely claimed that the FBI was “AUTHORIZED TO SHOOT ME,” and that agents of “Biden’s DOJ” were “just itching to do the unthinkable.”
In a fundraising email, Trump lied that FBI agents were “locked & loaded ready to take me out & put my family in danger.” In fact, the FBI used a standard form that restricted the use of force, rather than giving it the green light, and made sure that Trump and his family were not present during the search.
Under the Bail Reform Act, judges are supposed to impose the least restrictive measures to reasonably assure a defendant’s appearance in court and the safety of others. The names of the FBI agents behind the Mar-a-Lago search have been redacted in court filings, and Cannon questioned whether that addressed the safety threats to the satisfaction of the law.
“That is true, but here is why that should not remotely carry the day here,” Harbach said, adding that FBI agents’ identities were leaked after Trump’s indictment.
“The point is, the names are out there,” the prosecutor added.
Cannon replied that prosecutors have other tools at their disposal.
“There are legal means, presumably, to address doxxing,” she countered.
Put on the defensive, Harbach made a remark about only getting one of his points out before Cannon admonished him.
“Mr. Harbach, I don’t appreciate your tone,” she said, rebuking him about his lack of “decorum.”
Later in the hearing, Harbach apologized for the incident, as Smith watched on inside the courtroom seated behind the prosecution table.
Throughout his arguments, Harbach noted that the agents who discovered the more than 100 classified documents inside Mar-a-Lago are also witnesses in the case.
Cannon Seems Receptive to Trump’s Arguments
Trump’s attorney, Todd Blanche, who took the lead in the former president’s New York criminal case, had a much easier reception.
Without any apparent pushback from the judge, Blanche claimed at one point that Trump’s comments about the FBI’s search amounted to a mere “critique of Joe Biden and his Justice Department.”
“The attacks are against President Biden,” Blanche claimed.
Trump has presented no evidence that Biden had any connection to the search of Mar-a-Lago, or his criminal prosecutions more broadly. Cannon did not appear to question Blanche at any point about his client’s statements being false — or challenge his characterization of Trump’s posts.
For Harbach, those posts were what motivated prosecutors to bring their request.
“You don’t have to wait for something terrible to happen,” or for “tragedy to strike,” Harbach said.
The prosecutor added that changing Trump’s bail conditions does not require as vigorous a First Amendment analysis as a more straightforward gag order.
“You’re a criminal defendant in a case, and there are limits on what you can say,” Harbach said.
Law enforcement officials connected to Trump’s many prosecutions have faced threats that other judges found sufficiently connected to the former president’s comments to restrict his speech. Manhattan District Attorney Alvin Bragg received death threats inside envelopes containing white powder, which authorities later determined not to be dangerous. Manhattan Supreme Court Justice Arthur Engoron, who presided over Trump’s civil fraud case, and his law clerk were inundated with threatening and antisemitic messages, according to court officials.
In Trump’s Espionage Act case in Florida, FBI agents also received threats that prosecutors included as a recent exhibit, mostly dated the day of and after the Mar-a-Lago search.
Cannon, however, vigorously questioned the connection between Trump’s comments and threats to the safety of FBI personnel.
“There still needs to be a factual connection between A and B,” she said.
Cannon invited attorneys on both sides to submit further briefings and evidence on this issue by Wednesday.