Judge Cannon is skeptical of request for gag order against Trump in Mar-a-Lago case

The hearing on the special counsel’s request for a gag order against former President Donald Trump ended Monday without a ruling, but Judge Aileen Cannon had some very pointed questions for prosecutors.

Here’s what happened in court:

Cannon showed some skepticism toward prosecutors’ arguments, asking where they saw a call to violence in Trump’s comments and saying that they had needed to show some connecting facts between what the former president has said and the threats they are warning about.

The judge repeatedly sparred with prosecutor David Harbach, who she said was being snippy during his arguments.

Cannon quickly stopped Harbach, telling him, “I don’t appreciate your tone.” She added that she would “appreciate decorum at all times” and said, “If you aren’t able to do that, I’m sure one of your colleagues can take up arguing this motion.”

Harbach would later apologize.

Trump’s defense attorney Todd Blanche said Monday that there were no threats to FBI agents in Trump’s email or social media posts cited by the government, and argued the Justice Department was trying to punish Trump for other people’s comments.

“The attacks, very clearly, are against President Biden,” Blanche said of Trump’s communications at issue.

Read more.

In his rebuttal argument, prosecutor David Harbach argued that Trump’s comments were “way out of bounds” and are “nothing like speech that should be protected by the First Amendment.”

Judge Aileen Cannon said that the statute prosecutors are citing for the gag order “still requires a finding” related to the potential risks to others, noting that prosecutors didn’t need a direct cause.

“There still needs to be a factual connection between A and B,” Cannon said of the bridge between Trump’s comments and potential threats.

Harbach said that while Trump was welcome to campaign, there should be certain limits when it comes to the safety of agents on the case.

“Knock yourself out,” Harbach said about Trump’s campaigning. “But you don’t get to say things like that” he said of Trump’s email and posts.

The hearing ended without a ruling from Cannon.

Trump’s attorney said that prosecutors were trying to set a “dangerous precedent” by changing the former president’s conditions of release. 

Defense attorney Todd Blanche said that prosecutors are too vaguely defining what a threat is, making any potential new rules difficult to follow.

“Steve Bannon making a comment is potentially the kind of thing that could send President Trump to jail,” Blanche said.

“We’ll concede that people listen to President Trump,” Blanche said, but that shouldn’t bar him from making “completely protected political speech.”

Before concluding his argument Monday, prosecutor David Harbach apologized to Judge Aileen Cannon for being “unprofessional” earlier in the hearing.

“I just want to apologize about earlier,” Harbach said. “I didn’t mean to be unprofessional. I’m sorry about that.”

Earlier, Harbach appeared to become irritated at questions from Cannon who pressed the prosecutor to connect former President Donald Trump’s words to threats from others against law enforcement.

Cannon quickly stopped Harbach, telling him “I don’t appreciate your tone.”

Donald Trump’s attorney Todd Blanche argued that the former president never threatened FBI agents and that his rhetoric was aimed at President Joe Biden.

“The attacks, very clearly, are against President Biden,” Blanche said of Trump’s posts and email at issue.

Blanche also admitted that the Justice Department’s “deadly force” policy in place for the Mar-a-Lago search was standard for the execution of such search warrants.

“It doesn’t mean that it was right,” Blanche said, adding that FBI agents should never have been armed during the search in the first place. 

Fueled by search warrant documents, the former president falsely claimed that Biden had authorized the use of lethal force to “assassinate” him. This misinformation was leveraged in a fundraising campaign sent to supporters claiming that Trump was nearly assassinated.

The use of deadly force was authorized “only when necessary” during the raid, according to court filings, and is standard language.

Requesting the gag order, special counsel Jack Smith said thats “deploying such knowingly false and inflammatory language in the combustible atmosphere that Trump has created poses an imminent danger to law enforcement that must be addressed before more violence occurs.”

Prosecutor David Harbach said that Trump’s speech should be restricted because it “endangers the safety of others in the community.”

Harbach read one of Trump’s social media posts about the FBI search of Mar-a-Lago in 2022, in which Trump baselessly said that the FBI was authorized to kill him.

“The government is at a loss to conceive why Mr. Trump would say something so false, so inconceivable, or inviting of violence,” Harbach said, adding that Trump’s statements are “beyond irresponsible.”

“Where do you see a call for violence,” Cannon asked of the posts.

Harbach responded that other posts and comments by Trump “ultimately result in all types of terrible things,” including threats or harassment of law enforcement.

Judge Aileen Cannon indicated Monday she is skeptical of placing a gag order on Donald Trump and asked prosecutors if they wanted to provide more evidence of the former president’s words leading to threats.

The hearing is ongoing, and Cannon is not expected to rule today.

She set a deadline for Wednesday for prosecutors to decide whether they want to provide her more evidence in the record around the gag order issue.

Prosecutor David Harbach said the Justice Department will tell the court by tomorrow.

The judge has said she wants to provide both sides “adequate opportunity to respond” each time more evidence about gag orders, threats and other courts’ actions is brought into the Florida documents case.

The situation highlights how Cannon keeps allowing more arguments and information into the case, often putting off making decisions for weeks.

Judge Aileen Cannon dressed down prosecutor David Harbach twice in 20 minutes, making for tense arguments over the government’s request for a gag order on Donald Trump.

Cannon’s treatment of the case overall has been closely watched, as the Trump-appointed judge has helped the former president repeatedly delay the case.

In a tense exchange over protecting law enforcement officers’ identities in the classified documents case, the judge slammed Harbach over decorum.

Harbach appeared to become irritated at questions from Cannon who pressed the prosecutor to connect former President Donald Trump’s words to threats from others against law enforcement.

She added that she would “appreciate decorum at all times” and added “If you aren’t able to do that, I’m sure one of your colleagues can take up arguing this motion.”

“Yes, your honor,” Harbach replied.

“Let’s reset,” the judge said.

As the gag order hearing gets underway, prosecutors are arguing that changing Donald Trump’s release conditions to limit his speech about law enforcement in the classified documents case would be constitutional.

Ensuring safety of the community “takes it out of the land of First Amendment concerns,” prosecutor David Harbach told Judge Aileen Cannon on Monday afternoon.

Harbach repeatedly mentioned to Cannon how Trump supporters’ threats, harassment and attacks on officials might be curtailed if Trump’s speech was limited by the judge.

The prosecutor is also citing the court’s own authority to protect the community and control a defendant – even Trump – when he is awaiting trial from outside a jail cell.

Law enforcement secure the area outside of the Alto Lee Adams Sr. US Courthouse on February 12, in Fort Pierce, Florida.

Judge Aileen Cannon’s two-hour hearing Monday morning for Donald Trump’s criminal case on classified documents became a close read of past special prosecutors and their funding, in the latest attempt from Trump’s team to invalidate the case against him.

Here are key things to know:

Tough questions for Justice Department: Though the judge was careful to say her questions shouldn’t imply she was leaning one way, Cannon pushed Justice Department attorney James Pearce to explain how much money the department has used for its work in the Trump criminal cases. 

The judge noted that even if the office discloses its spending publicly every six months, a financial disclosure that would encompass last fall through this March was overdue.

She also sought from prosecutors guidance on explaining the laws and regulations that governed past special prosecutors, at one point bringing up Watergate and the era of Janet Reno as attorney general.

Cannon’s questions were so pointed toward Pearce, at one point the prosecutor mentioned how other courts have been overturned if they invalidated a government function in the way Cannon was probing, and said he hoped the Justice Department could provide additional written argument to the court if invalidating Smith was a serious possibility.

Should Congress be more involved? Trump is also aiming to bring Congress into the conversation. Trump attorney Emil Bove advocated at Monday’s hearing that Cannon should insist on more congressional oversight of the special counsel’s office’s work, or decide that the way the office is funded is unlawful because, he says, the money is being used in a way Congress hadn’t authorized.

The argument is in line with other arguments the Trump team has made to the judge in recent days alleging Smith is too independent from Justice Department leadership. Bove also told the judge more congressional oversight would curb what he called “extraordinary things” that were happening in the documents case.​

Justice Department attorneys have responded in court that the special counsel operates in line with established policies, in place over several decades and administrations, and that the DOJ is committed to continuing to fund this prosecution of Trump under the attorney general’s authorization. Republicans on Capitol Hill have also tried to buckle down on the DOJ’s use of the special counsel’s office and its funding.

Delay, delay, delay: As the case proceeds, slowly, Trump’s lawyers are using every opportunity they spot in recent weeks to request additional hearings and oversight—suggesting as much to Cannon at a hearing on Friday and again on Monday morning.

Prosecutors on the federal classified documents case, in stark and terse terms, put forward last week their case for a new gag order against Donald Trump in an effort to limit what he can say about agents involved in a search of Mar-a-Lago in 2022.

At 3 p.m. ET today, district Judge Aileen Cannon will hold a hearing for both parties to present their arguments over the proposed gag order, and tensions could quickly rise.

Citing Trump’s continued mischaracterization of the FBI’s policy in place around the use of deadly force during the search, prosecutors say Trump’s false claims that he narrowly escaped death from federal agents could lead to threats and harassment against them.

Trump was in New York when agents searched the Florida estate.

To support this concern, prosecutors, in a filing Friday, cited two examples of the type of threats and violence they believe could result from Trump’s comments.

Trump’s attorneys have called the proposed gag order a direct attack on Trump’s First Amendment rights and say prosecutors have not given an example of agents being harassed as a result of his recent comments.

In this image from video provided by the US Senate, Aileen M. Cannon speaks remotely during a Senate Judiciary Committee oversight nomination hearing to be US District Court for the Southern District of Florida on July 29, 2020, in Washington, DC.

Two federal judges in south Florida urged District Judge Aileen Cannon to forgo overseeing the criminal prosecution of former President Donald Trump when she was first assigned the classified documents case in 2023, according to a report from The New York Times last week.

The judges, one of whom was the district’s Chief Judge Cecilia M. Altonaga, suggested Cannon decline to oversee the case brought by special counsel Jack Smith and allow another judge to govern the case, the Times wrote, citing two people briefed on the conversations.

Cannon is still overseeing the case, which has seen a multitude of delays and increasing scrutiny.

Altonaga’s chambers declined to comment on the report to CNN. The Times did not identify the second judge who reportedly contacted Cannon.

At the time Cannon was assigned the high-profile criminal case, she had already faced public backlash – and a major reversal by an appeals court – over her handling of the lawsuit Trump brought challenging the FBI’s search of his Mar-a-Lago residence in August 2022, when agents found hundreds of classified documents scattered about the property.

Since then, Cannon has repeatedly raised eyebrows among legal scholars for her approach. Critics of the judge say that she has slowed the pace of the case to a near standstill, making a pre-election trial essentially out of reach.

Read more about Judge Cannon here.

If Judge Aileen Cannon were to grant the prosecutors’ request for a gag order, it would be the third that Donald Trump has been subject to during his criminal proceedings.

In his New York hush money criminal trial, Trump was placed under a gag order by Judge Juan Merchan that barred the former president from discussing witnesses, jurors, prosecutors, court staff and relatives of the district attorney. Trump repeatedly reposted content that directly attacked Michael Cohen and others involved in the trial. He also publicly criticized the jury.

Trump argued that the gag order was a violation of his First Amendment right to free speech – an argument that legal experts said had no merit as they are commonly used in criminal prosecutions to protect the integrity of the proceedings.

Trump is also under a gag order in his federal election interference case.

Judge Tanya Chutkan imposed a narrow order barring Trump from making comments about prosecutors, court staff and potential witnesses after a series of comments Trump posted on social media.

In this May 29 photo, Emil Bove arrives at Manhattan Criminal Court in New York City.

The second hearing of the day in Fort Pierce, Florida, will begin at 3 p.m. ET, and attorneys will argue over a potential gag order for the former president.

Donald Trump’s attorney Emil Bove previewed his arguments at the end of the morning session, saying the proposed gag order is a “truly extraordinary” effort to limit Trump’s speech at debates and on the campaign trail.

The first debate between Trump and President Joe Biden is Thursday on CNN. The Justice Department has said politics is not a consideration in its gag order request.

Bove also questioned whether Attorney General Merrick Garland authorized the gag order request.

Trump’s attorney Emil Bove said that the Justice Department’s appointment of special counsels needs “more oversight from Congress,” and urged Judge Aileen Cannon that congressional oversight would curb what he called the “extraordinary things that are happening” in the classified documents case.

Bove also said that, should Cannon say that the Justice Department must fund Smith’s office on its own, as a prosecutor suggested it might do, it would “highlight a separation of powers issue.”

Donald Trump’s legal team has consistently filed motion after motion in attempt to delay criminal proceedings against the former president. These delays have become a central component of Trump’s legal strategy – one that district Judge Aileen Cannon has been receptive to, hence today’s hearing.

In New York: Days before the trial began in the criminal hush money case, Trump’s legal team filed several unsuccessful motions attempting to delay the proceedings, including one asking the judge to recuse himself due to his daughter’s political activity.

In Washington: In the federal case accusing Trump of attempting to overturn the 2020 election results, Trump’s team was able to ask the Supreme Court to give Trump complete immunity from prosecution on all actions he has taken as president. As a result, all proceedings in this case have been delayed until the court makes its decision, which is expected this week.

In Fulton County: In his Atlanta-based case, the defense has employed similar delay strategies, focusing on District Attorney Fani Willis’s relationship with lead prosecutor Nathan Wade — a relationship that Trump’s team has argued should disqualify Willis.

Prosecutor James Pearce told Judge Aileen Cannon that should she find that special counsel Jack Smith was improperly funded, the Justice Department is prepared to fund Smith’s office by itself.

“The Department of Justice, at least in the 2023 appropriations cycle, (has) over $1 billion,” Pearce said.

Cannon has pressed prosecutors over the limitless nature of funding for Smith.

“I think there is a separation of powers concern,” she said, when there is no cap on funding. During this line of questioning, Cannon told Pearce that she was not “indicating anything” by asking about alternative funding routes, but rather to “cover the scope of what’s being briefed here.”

Judge Aileen Cannon is asking very specific questions as she walks attorneys through granular details of the historic laws that have governed previous special counsel investigations.

Her questions are focused on the Constitution’s appropriations clause and on a law passed in the wake of the Watergate scandal called the Ethics in Government Act.

In his arguments against the way special counsel Jack Smith is being funded, Donald Trump’s attorney Emil Bove argued Smith’s office has been in violation of funding statutes “from its inception.”

“There’s not a valid appropriations that validates what’s going on here.” Bove said.

Judge Aileen Cannon, who had detailed questions for Bove during his oral arguments, asked at one point: “Is there any cap to the funding?”

“No,” Bove said, adding that was part of the reason the court should be “wary” of the way Smith’s office is funded.

Rep. Jim Jordan, right, arrives for a weekly GOP caucus meeting on Capitol Hill on June 4 in Washington, DC.

As Donald Trump’s attorneys argue that special counsel Jack Smith’s funding violates the US Constitution, his Republican allies in the House are waging a similar battle.

In a June 3 letter to Oklahoma Republican Rep. Tom Cole, head of the House Appropriations Committee that controls much of Congress’s spending powers, Republican Rep. Jim Jordan of Ohio called for the elimination of funding from “politicized prosecutions.”

Jordan chairs the House’s Subcommittee on the Weaponization of the Federal Government and has repeatedly criticized the cases brought against Trump, claiming that they are politically motivated and masterminded by the Biden administration. (There is no evidence that the president has been involved in any criminal proceeding against Trump.)

In his letter, Jordan also endorsed a bill that would “authorize removal of an action or prosecution against a President, Vice President, former President, or former Vice President.”

As the House convenes this week, lawmakers are set to consider various appropriations bills, including funding for the Justice Department.

While Cole has previously called the guilty verdict in Trump’s criminal hush money trial “a sad example of political gamesmanship,” it is unclear whether he will support such measures to eliminate funding.

The hearing about whether special counsel Jack Smith is lawfully funded in the classified documents case has begun.

Smith is in the courtroom for the arguments in front of Judge Aileen Cannon. He is joined by prosecutors Jay Bratt and James Pearce.

Lawyers for former President Donald Trump, Walt Nauta and Carlos De Oliveira, are also in the courtroom. 

The three defendants were not required to attend today’s proceedings.

Special Counsel Jack Smith delivers remarks on a recently unsealed indictment including four felony counts against former President Donald Trump on August 1, 2023 in Washington, DC. 

Attorneys for Donald Trump will continue their legal efforts to throw off special counsel Jack Smith and the classified documents case against the former president in Florida on Monday. 

Trump’s attorneys will battle prosecutors in court on the second part of Trump’s argument that Smith’s appointment was illegitimate, focusing on how he’s being funded.

On Friday, prosecutors, defense attorneys and third parties fought over whether Smith was legitimately appointed as special counsel, an argument district Judge Aileen Cannon seemed skeptical of during the hearing.

“President Biden’s DOJ is paying for this politically motivated prosecution of Biden’s chief political rival ‘off the books,’ without accountability or authorization,” Trump’s attorneys argued in their filing earlier this year. “Rather than funding the Special Counsel’s Office through the ordinary budget process, Jack Smith is drawing on a permanent indefinite appropriation.”

“Special Counsel expenditures have not become part of the Department’s budget and, as here, continue to be funded through the permanent indefinite appropriation reserved for ‘independent counsels,’” his attorneys wrote. 

Prosecutors say Trump’s reasoning is “unsound” and that the Attorney General “has exclusive authority (except as otherwise provided by law) to direct ‘the conduct of litigation’ on behalf of the United States.”

“The Special Counsel’s investigation is lawfully funded through an appropriation that has been used repeatedly to pay similar special and independent counsels,” prosecutors wrote, “and the lawfulness of this practice is confirmed by statutory text, history, and longstanding practice (including funding for a special counsel appointed during Trump’s administration).”

The Alto Lee Adams, Sr. US Courthouse in Fort Pierce, Florida.

Judge Aileen Cannon has released the schedule for the Tuesday hearings in the Mar-a-Lago classified documents case:

11 a.m. ET: A closed-door, confidential hearing with the defense lawyers and the special counsel’s office. The hearing will cover sealed matters, including secret grand jury information

1 p.m. ET: A public hearing for Trump and his co-defendants to challenge evidence used in the classified documents indictment

The afternoon hearing will address Trump’s alleged attempts to throw out evidence seized in the FBI search of Mar-a-Lago in 2022, such as boxes of classified records that Trump is accused of mishandling and attempting to obstruct federal authorities from recovering after his presidency. Trump has pleaded not guilty.

The judge will also discuss the testimony and evidence prosecutors collected from Trump’s former lawyers that helped to build the obstruction case against him — the type of information that a Washington, DC-based judge ordered the attorneys to provide to the grand jury before Trump was charged. Trump’s lawyers are trying to convince Cannon that interactions between Trump and his then-primary attorney Evan Corcoran before the Mar-a-Lago search shouldn’t have been allowed to become part of the case. 

Donald Trump was found guilty in May 2024 on 34 counts of falsifying business records in the hush money trial in Manhattan criminal court.

Trump became the first former president in US history to be convicted of a felony, and with his third presidential bid under way for 2024, the stakes are high for both him and the country.

Catch up on what you need to know about Trump’s four cases:

Here’s a recap of each case: 

Track the criminal cases against Trump.