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Special counsel Jack Smith is preparing legal action if a Donald Trump-appointed judge refuses to rein in the former president's comments, a former prosecutor has said.
Trump has repeatedly said that the FBI was willing to use legal force while searching his Mar-a-Lago estate for classified documents.
Smith filed a motion to Judge Aileen Cannon on May 24 seeking an alteration to Trump's bail conditions, in which he would be restrained from making dangerous and untrue comments about the FBI.
Smith was appointed special counsel supervising Trump's federal indictments. Newsweek sought email comment from Trump's attorney on Monday.
Former federal prosecutor Joyce Vance wrote in her legal blog, Civil Discourse, on Sunday that Smith decided not to apply for a gag order because he knows that it would be easier to appeal if Cannon refuses his request to adjust Trump's bail conditions.
"Why did Smith go this route instead of asking for a gag order? That's a great question, and I think it suggests where Smith is headed," wrote Vance, who served as U.S. attorney for the Northern District of Alabama during the Obama administration.
She said the relevant federal law "specifically authorizes the government to appeal if a district judge denies a motion to modify the conditions of release."
"That's what this is all about. Donald Trump isn't the only one who can take an appeal for strategic reasons. Judge Cannon has had real trouble ruling for the government in routine motions that clearly merited that treatment. If she rules against them here, they'll be prepared to take a quick appeal," Vance wrote.
Cannon is a U.S. district judge based in Florida and was appointed by Trump in 2020. She is now presiding over the DOJ's case against the former president. He is accused of illegally keeping classified documents that he took with him after leaving the White House in 2021 and then obstructing the government's efforts to retrieve them. He has pleaded not guilty to the charges.
Cannon has faced criticism and calls to recuse herself from the case for making a several decisions that some say have favored the former president.
Vance said "the more pressing question" is what Smith will do if Cannon deliberately doesn't move on his request—"if she sits on the motion, as she has on so many others in this case, without ruling or even scheduling a hearing."
"Smith will likely be politely persistent at first, asking her to schedule the hearing," she wrote.
If that doesn't work, Smith will likely seek a writ of mandamus to the appeal court, Vance believes.
"Mandamus asks an appellate court to order a trial judge to do something they are obligated to do but won't or to refrain from doing something they are not permitted to do," she explained.
The search warrant used in the 2022 raid on Trump's Mar-a-Lago residence was recently unsealed in Trump's classified documents criminal case in Florida. The raid led to the seizure of hundreds of documents containing classified information, which resulted in dozens of felony counts against the former president.
The former president posted misleading claims about the warrant's wording on his Truth Social account, alleging that the DOJ "AUTHORIZED THE FBI TO USE DEADLY (LETHAL) FORCE." In addition, a Trump campaign email that was recently sent to supporters said that FBI agents were "authorized to shoot" Trump, saying President Joe Biden was "locked & loaded and ready to take me [Trump] out."
However, the FBI said in a statement that the wording of the warrant was standard and the phrase "deadly force" was also included when agents searched Biden's Delaware home for classified materials.
"The FBI followed standard protocol in this search as we do for all search warrants, which includes a standard policy statement limiting the use of deadly force. No one ordered additional steps to be taken and there was no departure from the norm in this matter," the agency's statement said.
Discussing Trump's claim about the search warrant, U.S. Attorney General Merrick Garland said at a news conference on Thursday that the "allegation is false and it is extremely dangerous," reiterating that the document in question is standard policy.
Smith's filing to Cannon on Friday included 12 pages of Trump's online about the FBI deadly force claim, along with another from X account PatriotTakes, which describes itself, in part, as "researchers monitoring and exposing right-wing extremism." The latter said former Trump adviser Steve Bannon had claimed that "the Mar-a-Lago FBI classified document search was 'an attempted assassination' by Joen Biden on Trump and his associates."
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About the writer
Sean O'Driscoll is a Newsweek Senior Crime and Courts Reporter based in Ireland. His focus is reporting on U.S. law. ... Read more