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A request by Donald Trump's lawyers to sanction Special Counsel Jack Smith's office for filing a gag order motion against the former president in his classified documents case has raised questions among legal analysts.
In a filing on Monday, Trump's attorneys said that Smith's request amounted to "unconstitutional censorship" of the former president, and asked Judge Aileen Cannon to impose sanctions on "all government attorneys who participated in the decision to file the motion."
Smith's office filed a motion on May 24 asking Judge Cannon, a Trump appointee, to change the former president's bail conditions in the case in order to restrict him from making comments that could put FBI agents in danger. The request—which was rejected by Cannon on Tuesday, according to CNN—was in response to Trump's repeated claims that the agents who raided his Mar-a-Lago residence in August 2022 were prepared to kill him.
Responding to the Trump team's request, MSNBC legal analyst Lisa Rubin wrote on X, formerly Twitter: "Trump baselessly accused Biden of trying to assassinate him by using standard FBI protocol on a day everyone knew Trump would not be present. The Special Counsel asked for relief. But now Trump's team wants sanctions because they got insufficient notice of their client's highly dangerous statements."
Former federal prosecutor, Joyce Vance, said that Smith had to act because Trump was putting law enforcement officers at risk.
"In their Friday night motion, the gov't preempted this motion - at least in the mind of a reasonable jurist - explaining Trump's lawyers resisted conferral [because] of the holiday weekend. The gov't showed that after that, Trump continued to make statements that put law enforcement at risk," she wrote on X on Monday.
Meanwhile, Laurence Tribe, a legal scholar, posted: "Let's hope Judge Cannon grants this nutty Trump motion to sanction Smith! That'll bring the 11th Circuit down on her like a ton of bricks. It could be the best way to get her taken off the case."
Newsweek reached out to Donald Trump's attorney via email for comment on Tuesday.
Trump was indicted in a Florida federal court 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 all charges.
The controversy over Trump's comments follows the unsealing of documents related to the FBI raid on his Mar-a-Lago estate to recover the classified papers.
The court application for the search warrants used the standard formula that the FBI agents involved were authorized to use lethal force—language that is normal for such applications.
Trump claimed on social media posts that the FBI agents had been trained by the Biden administration to shoot him. Other Trump supporters, such as Steve Bannon, repeated such claims, according to a motion Smith filed with Cannon on May 24.
Writing on his Truth Social account, Trump alleged that the Department of Justice "AUTHORIZED THE FBI TO USE DEADLY (LETHAL) FORCE." In addition, a Trump campaign email claimed that FBI agents were "authorized to shoot" Trump, saying President Joe Biden was "locked & loaded and ready to take me [Trump] out."
In his motion on Friday, Smith requested that Cannon alter Trump's bail conditions so that he is forbidden from making such claims against the FBI, which Smith claimed were putting FBI agents in danger from Trump supporters.
Cannon rejected the request on Tuesday, saying that it was "wholly lacking in substance and professional courtesy" according to CNN.
On Monday, Trump's lawyers Chris Kise and Todd Blanche had filed a lengthy rebuttal in which they accused Smith and the other prosecutors of trying to silence Trump's free speech. They also want Cannon to sanction Smith and his team for not conferring with Trump's lawyers before filing the motion.
"The Court should strike the Motion, make civil contempt findings as to all government attorneys who participated in the decision to file the Motion without meaningful conferral, and impose sanctions after holding an evidentiary hearing regarding the purpose and intent behind the Office's decision to willfully disregard required procedures," Trump's lawyers wrote.
"There was no basis for rushing to file the Motion on Friday night. This is bad-faith behavior, plain and simple. The misconduct by the Special Counsel's Office is even more worthy of sanctions in light of the context."
They describe Smith's motion to adjust Trump's bail conditions as "an extraordinary, unprecedented, and unconstitutional censorship application."
"The Motion unjustly targets President Trump's campaign speech while he is the leading candidate for the presidency," their filing states.
"Once disfavored, but now in vogue for prosecutors driven by political animus against President Trump, gag orders reflect an extremely serious threat to our constitutional traditions—especially when they are applied to political candidates. The Motion goes one step further, however, in seeking to condition President Trump's liberty on his compliance with the views of Smith, Bratt, Harbach, and the other self-appointed Thought Police regarding what constitutes fair argument to the American people by the leading candidate in the 2024 presidential application," it adds.
Attorneys Jay Bratt and David Harbach referred to in the Trump response are prosecutors on Smith's team.
Update 05/28/24, 10:58 a.m. ET: This article was updated with additional information and to include statements from Lisa Rubin, Joyce Vance and Laurence Tribe.
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