After an unprecedented three-day hearing, in which she indulged Donald Trump’s far-fetched legal arguments about the validity of special counsels and needled prosecutors’ request for a gag order, U.S. District Judge Aileen Cannon once again gave the ex-president a leg up by drawing out a ruling in his classified documents case.
On Monday, nearly four full weeks after Special Counsel Jack Smith filed a motion to prohibit Trump from inciting violence against the FBI agents investigating him, Cannon finally heard arguments from both sides. But—frustratingly, to prosecutors—she wrapped the hearing on Tuesday without issuing a ruling and she was not expected to anytime soon, leaving Trump free to lash out during Thursday’s presidential debate.
“I’m not surprised that Judge Cannon is delaying ruling on the gag order,” former federal prosecutor Neama Rahmani told The Daily Beast on Tuesday. “She’s delayed this case and ruled in Trump’s favor at almost every possible turn. She’s entertained arguments that no other judge would, and even allowed outsiders to submit briefs and argue in the case. Unfortunately, this latest delay is just par for the course for her, and another example of why she’s in over her head.”
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The relatively inexperienced Cannon has been accused of handing down decisions thus far that have been overly friendly to Trump, who appointed her to the bench after he lost the 2020 election but before he left office. She was reportedly exhorted by colleagues to recuse herself from the classified documents case because of this, and the likely perception of bias by the public, but refused.
Now, observers wonder if Cannon isn’t trying to run out the clock on the prosecution, allowing for the chance that Trump might retake the White House in November and order his own attorney general to scotch the case entirely. (As former prosecutor Jordan Rubin wrote last week, Cannon “apparently does not view this issue as one requiring imminent action,” and it will likely be “a while” before she hands down a decision.)
Attorney Dan Meyer, a former federal investigator who now serves as national security partner in Tully Rinckey PLLC’s Washington, D.C. office, said Cannon is subject to the same sort of pressures felt by former FBI Director James Comey during the 2016 presidential race, when he raised concerns shortly before Election Day about Hillary Clinton’s use of a private email server.
Courts “are as vulnerable to the perception of bias” as any other official body, Meyer told The Daily Beast.
“Judge Cannon is pressured by the appellate judges above her; judges like Cannon fear they will be overturned or rebuked,” he said. “Once a judge’s bench becomes a dumpster fire, the judge’s peers start to distance themselves. You become bruised fruit. She’s trying to not be bruised fruit.”
It is unclear when Cannon will rule on whether or not she will bar Trump from badmouthing the FBI.
In late May, Cannon shot down a request by Smith to muzzle Trump from potentially endangering the lives of FBI employees who were investigating a hoard of classified documents the twice-impeached ex-POTUS took from the White House after leaving office.
The issue was Trump’s bogus claim, both on social media and in fundraising emails, that the feds had come to Mar-a-Lago not just to collect evidence, but with orders to summarily execute him.
In what prosecutors called a gross distortion of the FBI policy governing the use of force while serving search warrants, which was included as standard boilerplate language in documents connected to the search of Trump’s property, Trump insisted to his followers that the FBI “WAS AUTHORIZED TO SHOOT ME,” that agents were “just itching to do the unthinkable,” and claimed they were “locked & loaded ready to take me out & put my family in danger.”
In their appeal to Cannon for a limited gag order, Smith’s team highlighted similar messages sent to supporters along with posts on Truth Social, Trump’s flagging Twitter clone, saying the Department of Justice “[s]hockingly… authorized the use of ‘deadly force’ in their Illegal, UnConstitutional, and Un-American RAID of Mar-a-Lago, and that would include against our Great Secret Service, who they thought might be ‘in the line of fire.’”
“Predictably and as he certainly intended, others have amplified Trump’s misleading statements, falsely characterizing the inclusion of the entirely standard use-of-force policy as an effort to ‘assassinate’ Trump,” prosecutors wrote last month. Trump’s “deceptive and inflammatory claims… have the potential to undermine the integrity of the proceedings as well as jeopardize the safety of law enforcement.”
And while Trump claimed the FBI arrived at Mar-a-Lago looking to gun him down, Smith’s May 31 motion dispels this myth. In fact, it explains, the FBI coordinated the Mar-a-Lago search with Trump’s representatives, as well as the Secret Service, and chose a date “during Mar-a-Lago’s offseason when neither Trump nor his family would be in Florida.”
As for the language in the warrant package, FBI policy requires that agents “must be armed when on official business,” and that those agents on the Mar-a-Lago team were purposely attired in “[b]usiness casual with unmarked polo or collared shirts and law enforcement equipment concealed,” prosecutors wrote.
Trump’s “deceptive and inflammatory assertions” about the FBI “irresponsibly put a target on the backs of the… agents involved in this case, as Trump well knows,” the motion stated, adding that at least one armed Trump fan has already tried to storm an FBI office in response to Trump’s claims.
The motion asked Cannon to “exercise [her] authority to impose a condition that Trump may not make public statements that pose a significant, imminent, and foreseeable danger to the law enforcement agents participating in the investigation and prosecution of this case.”
Trump’s lawyers, meanwhile, argued that any gag order would violate his First Amendment rights and floated the claim in court on Monday that Trump’s rage was directed not at the FBI but at Joe Biden.
