Meltdown in Florida

An extended temper tantrum by one of Special Counsel Jack Smith's prosecutors this week represented the DOJ's frustration at failing to cover-up the dirty details of the imploding documents case.

“I'm going to ask that you just calm down. I understand this is sensitive and it's difficult, but these questions are briefed and they're before the Court.”

So said Judge Aileen Cannon to David Harbach, one of Special Counsel Jack Smith’s lead prosecutors in the government’s espionage and obstruction case against former president Donald Trump, during a hearing on Wednesday. While temperatures spiked outside the federal courthouse in Fort Pierce, Florida throughout the day, so too did the climate inside Cannon’s courtroom. 

The May 22 proceeding, as I explained here, represented the first of a series of hearings that will turn the tables on Smith; Cannon is in effect putting the Department of Justice on trial to account for its corrupt, dirty, and sloppy prosecution into Trump and two co-defendants.

Cannon’s admonishment came after what can only be described as a prolonged meltdown by Harbach after he ranted for several minutes in response to a defense motion seeking to dismiss the case against Waltine Nauta, Trump’s longtime personal valet also charged in the indictment, based on selective and vindictive prosecution. 

At times pounding the podium and clapping his hands in anger to emphasize a point, Harbach, usually the cooler head of the prosecution side, escalated the war of words between Cannon and the special counsel’s team. A longtime DOJ apparatchik having served as former FBI Director James Comey’s special counsel and alongside Smith in the DOJ public integrity unit during the Obama administration, Harbach is used to getting his way before federal judges.

Not this time. Cannon is a slow-moving freight train, systematically and almost to the point of torment exposing every government fault line in the imploding case. 

Just this month alone, Cannon has forced Smith to admit key evidence seized during the 2022 FBI raid of Mar-a-Lago has been bungled and possibly misplaced, contrary to his team’s representations to her.

She continues to authorize the unsealing of motions and exhibits including records the DOJ never thought would see the light of day.

In fact, Harbach’s outburst came less than 24 hours after Trump’s lawyers filed a motion related to the Mar-a-Lago raid, a document Cannon ordered unsealed; the motion, as I reported on Twitter/X Tuesday afternoon as well as here, revealed the stunning news that FBI agents had authority to use deadly force during the nine-hour raid.

The disclosure instantly prompted fury on the Right, leading to a damage-control statement by the FBI several hours later. Attorney General Merrick Garland also addressed the controversy the following day, calling Trump’s claims about a potential assassination, “false and extremely dangerous.” Garland also claimed, without evidence, that the consensual search of Joe Biden’s home for classified documents involved the same authorization for use of force.

Late Friday night, Smith filed a motion asking Cannon to prohibit Trump from making public statements “that pose a significant, imminent, and foreseeable danger to law enforcement agents participating in the investigation and prosecution of this case.”

Will the Public Learn More about a Controversial 2022 Meeting?

But Harbach’s bad behavior in court specifically related to accusations of prosecutorial abuse. Nauta’s attorney, Stanley Woodward, has accused the DOJ of retaliating against Nauta for refusing to flip on Trump and become a cooperating witness. (Nauta faces several charges including conspiring to obstruct the investigation and making false statements.)

Woodward further alleged that Jay Bratt, the other lead DOJ prosecutor, made threats against Woodward during an August 2022 meeting to discuss Nauta’s potential cooperation. Woodward said Bratt noted his pending judicial nomination before the D.C. Superior Court and said something to the effect of “I wouldn’t want you to do anything to mess that up.”

Bratt’s conduct during the meeting is the subject of both a congressional investigation and an Office of Professional Responsibility probe at the DOJ. (The OPR inquiry is on hold pending resolution of the classified documents case.) Woodward wants all records and communications about the meeting given to the defense—something Cannon appears inclined to do.

Which sent Harbach over the edge.

Calling Woodward’s account of the meeting a “fantasy,” Harbach blasted Woodward’s “garbage” argument for dismissing the case. “This is no way to run a railroad,” Harbach, perhaps ignorant to the irony of using that particular word, told Cannon for her allowing Woodward to discuss at length his allegations about the meeting.

When Cannon inquired as to the existence of records including Zoom videos that might support or refute Woodward’s account of the meeting, Harbach scolded her. “I have already told Your Honor that no recording exists. I have told you that some time ago,” Harbach replied.

Cannon reminded an increasingly agitated Harbach that she maintains oversight into how the investigation was conducted. “I still have inherent authority to oversee this proceeding and ensure that professionalism is maintained, and I think there is a basis to ask those questions, which is why I'm asking them,” she shot back.

If Cannon orders the DOJ to produce all communications before and after the meeting, the ruling could represent another blow to the special counsel’s cratering credibility. Congress already wants answers about the spoliation of evidence; more congressional demands related to the authorization for lethal force and other dubious aspects of the FBI raid could be around the corner.

Cue more meltdowns.