Prosecutor in Classified Documents Case Clashes With Judge Over Request to Gag Trump’s Speech

Special counsel Jack Smith speaks to the media about an indictment of former President Donald Trump, Aug. 1, 2023, in Washington. (AP Photo/J. Scott Applewhite, File)

FORT PIERCE, Fla. (AP) — A federal prosecutor in the classified documents case of Donald Trump clashed with the judge Monday as he faced skeptical questioning over a request to bar the former president from making threatening comments about law enforcement agents involved in the investigation.

Special counsel Jack Smith’s team is seeking to make as a condition of Trump’s freedom pending trial a prohibition on remarks that they contend could endanger FBI agents participating in the case. Prosecutors say those restrictions are necessary after Trump claimed last month that the FBI was prepared to kill him when it searched his Florida estate, Mar-a-Lago, for classified documents two years ago.

But prosecutor David Harbach, a member of Smith’s team, encountered immediate pushback from U.S. District Judge Aileen Cannon. The judge questioned Harbach about how she could fashion an order that did not run afoul of Trump’s free speech rights, whether FBI agents were sufficiently protected if their names were withheld from court documents and how prosecutors could prove a direct link between Trump’s comments and any resulting harm to the public.

“I’m trying to make sure that whatever condition is contemplated is consistent with the First Amendment,” she said, later adding that there needs to be a connection “between the alleged dangerous comments and the risk” to public safety.

At one point, as Harbach tried to rattle off the multiple rationales that he said existed for speech restrictions on Trump, and upon being interrupted by Judge Cannon, the visibly exasperated prosecutor noted acidly that “I’ve got one reason out so far.”

The comment drew a rebuke from Cannon, who said, “Mr. Harbach, I don’t appreciate your tone.” She said that if he could not behave in a more professional manner, one of his colleagues could take over instead.

Harbach later apologized to the judge, saying he hadn’t meant to be unprofessional.

Defense lawyer Todd Blanche disputed the idea that Trump’s comments posed an imminent threat to anyone in law enforcement and contended that prosecutors’ request would have a chilling effect. Trump is the presumptive Republican presidential nominee and is set to debate President Joe Biden on Thursday.

It was not immediately clear when Cannon might rule. The arguments were part of a three-day hearing that began Friday to deal with several of the many unresolved legal issues that have piled up in a case that has been snarled by delays and a plodding pace. Cannon indefinitely postponed the trial last month and no new date has been set.

Trump faces dozens of felony charges accusing him of illegally hoarding top-secret records at Mar-a-Lago and obstructing the FBI’s efforts to get them back. Cannon has been slow to rule on numerous motions and has proved willing to entertain defense requests that prosecutors say are meritless.

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