Federal Judge Aileen Cannon on Tuesday rejected special counsel Jack Smith’s request for a gag order against Donald Trump in the classified documents case, saying that prosecutors’ efforts to confer with the defendant was “wholly lacking in substance and professional courtesy.”
In a brief order, Cannon slammed prosecutors for not following the court’s rules by failing to meaningfully confer with Trump’s defense lawyers about a potential gag order before making the request.
“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 wrote, adding, “it should go without saying that meaningful conferral is not a perfunctory exercise.”
The judge’s order highlights the cumbersome filing process that has repeatedly plagued the case as it inches towards trial.
Prosecutors can ask for a gag order again, Cannon said, once they give “sufficient time” to Trump’s defense team to read the motion and discuss it with prosecutors.
The special counsel’s request – the first in the classified documents mishandling case – came after Trump repeatedly and misleadingly criticized the FBI for having a policy in place around the use of deadly force during the search and seizure of government records at his resort in August 2022.
Trump’s campaign, for instance, sent a fundraising email on Tuesday that claimed FBI agents were “locked and loaded” and that he “nearly escaped death” at Mar-a-Lago.
While Trump has told his supporters he could have been in danger because of the policy, it is standard protocol for FBI searches and limits how agents may use force in search operations. The same standard FBI policy was used in the searches of President Joe Biden’s homes and offices in a separate classified documents investigation.
In a blistering court filing late on Memorial Day, attorneys for Trump said that the gag order request was an “extraordinary, unprecedented, and unconstitutional censorship application” to target Trump’s speech as he runs for president.
The attorneys also said that prosecutors, whom they referred to as “self-appointed Thought Police,” were “seeking to condition President Trump’s liberty on his compliance” with their own views.
Though many outside legal experts have been critical of Cannon’s approach to the classified documents case in the past, in this instance, Cannon was “right,” said Mark Schnapp, a south Florida defense attorney not involved in the case, who pointed to the court’s local rules for meeting and conferring.
Schnapp said it “just looks bad” for the prosecutors to move forward with filing the motion on a Friday night of a holiday weekend when the defense team had offered to discuss the gag order request on Monday.
“Was it going to be a futile exercise? Yes,” said Schnapp. “But it wasn’t the kind of thing that they should have filed without following the rules.”
This story has been updated with additional details.
