Jack Smith's 'Shocking Display of Disregard for the Constitution'

The Special Counsel is fighting for his legal life in the classified documents case while asking the judge to ban Donald Trump from criticizing FBI agents involved in the botched investigation.

Public outrage following the disclosure of shocking details related to the FBI’s unprecedented raid of Mar-a-Lago isn’t going away despite the best efforts by some to portray the search as “standard operating procedure.”

The scandal continues to put the Department of Justice on its heels. After court documents demonstrated the potentially dangerous situation created by the presence of two armed federal law enforcement agencies at the former president’s sprawling Palm Beach estate that day, both Attorney General Merrick Garland and FBI Director Christopher Wray made public statements in an attempt to downplay the FBI’s inclusion of lethal force language in the FBI’s raid plan.

But Republicans are not placated by the DOJ’s assurances of following “standard operating procedure” or unsubstantiated claims that the deadly force policy also was in play during consensual searches of Joe Biden’s home in 2023. And it appears U.S. District Court Judge Aileen Cannon has her own set of concerns as to how the FBI conducted the search on August 8, 2022.

Next week, Cannon will hold a hearing in her Florida courtroom on Donald Trump’s motion to prevent Special Counsel Jack Smith from using evidence seized during the nine-hour raid at trial. Cannon is presiding over Smith’s espionage and obstruction indictment against Trump and his two codefendants.

Smith is on Cannon’s bad side for a number of reasons, not the least of which is his office’s recent confession that evidence is not in the same sequence as they were following the raid—something Smith’s lead prosecutor misrepresented in court—and that an unknown number of classified documents apparently are unaccounted for. (I explained here.)

Trump’s lawyers further accuse FBI agents of exceeding the scope of the warrant by ransacking the bedroom of Mrs. Trump and their son, Barron.

Smith’s Latest Attempt to Silence Trump

Cannon also will hear Smith’s argument to impose a partial gag order prohibiting Trump from making public statements critical of law enforcement involved in the case. After getting a scolding from Cannon for violating her rules related to conferring with the defense before filing any substantive motion—she called Smith’s half-assed attempt to reach Trump’s lawyers the Friday evening before Memorial Day weekend, “disappointing”—Smith filed a renewed motion to modify the conditions of Trump’s release, a better way of saying “gag order,” on May 31.

“The Government’s request is necessary because of several intentionally false and inflammatory statements recently made by Trump that distort the circumstances under which the Federal Bureau of Investigation planned and executed the search warrant at Mar-a-Lago,” Smith wrote. “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.”

A few of Trump’s Truth Social posts about the raid and a campaign email that accused Joe Biden’s DOJ of being “locked and loaded” represented the sum total of evidence to bolster Smith’s claims of potential danger to law enforcement.

Those unfounded accusations follow a pattern. Smith made the same argument, successfully, to Judge Tanya Chutkan last year in the January 6-related case against Trump in Washington. Claiming Trump’s critical comments about public figures such as former Attorney General Bill Barr and former Vice President Mike Pence—both of whom at the time were attacking Trump—represented a “threat” to potential witnesses, Chutkan banned the former president from making public statements about witnesses and even Jack Smith himself. (Smith had asked for protection under his proposed gag order. Chutkan granted it but that part of her gag order was overturned by the D.C. appellate court.)

So, Smith is up to his same old tricks in less friendly territory in Florida. Asking Cannon to ban Trump from speaking about the raid under false pretenses is just another example of how the Special Counsel’s office is trying to shield the American people from learning about this case. He also pulled out the “threats and harassment” excuse in previously asking Cannon to conceal the names of potential witnesses in the case; she said no.

Smith continues to oppose efforts to unseal other evidence related to the investigation—a mostly losing battle as Cannon repeatedly underscores her commitment to transparency—including a trove of records demonstrating collusion between the Biden White House, the National Archives, and the DOJ in spring 2021 to concoct some sort of documents case against the former president.

Defense attorneys complain they still do not have all the discovery they are entitled to receive; some materials from grand jury proceedings in Washington, the Trump-hating and out-of-jurisdiction court where most of the investigation took place, also have not been turned over.

At the same time, the DOJ and Democrats warn that Trump is a threat to “democracy” and the “rule of law.'“

It is, of course, the exact opposite. Calling Smith’s gag order demand a “shocking display of overreach and disregard for the Constitution,” Trump’s lawyer filed a response on June 14:

The requested release condition would place Smith and his colleagues in a position to seek President Trump’s arrest and temporary detention any time he said something they disagreed with—including but not limited to statements on the debate stage, the campaign trail, on social media, and potentially even including communications by President Trump’s campaign staff. The motion is a naked effort to impose totalitarian censorship of core political speech, under threat of incarceration, in a clear attempt to silence President Trump’s arguments to the American people about the outrageous nature of this investigation and prosecution.

Cannon, however, is unlikely to play along with the DOJ’s desperate ploy to prevent the former president from continuing to expose this deeply botched case. Smith isn’t concerned about what he described as Trump “put[ting] a target on the backs of the FBI agents”—after all, names of law enforcement in the case are redacted in court documents—but rather how to protect his sloppy, dishonest prosecutors and investigators from Trump’s wrath.