Judge refuses to gag Trump in classified docs case, says special counsel motion failed 'basic' requirements

A federal judge on Tuesday denied Special Counsel Jack Smith’s request for a gag order on former President Donald Trump in his classified documents case after defense attorneys called it “unconstitutional censorship.”

In an order, U.S. District Judge Aileen Cannon found that Smith’s prosecutors failed to properly confer with Trump’s lawyers before filing the motion in violation of court rules. The judge said prosecutors did not give Trump’s team “sufficient time” to review their motion, which was filed Friday evening on Memorial Day weekend.

“Because the filing of the Special Counsel’s motion did not adhere to these basic requirements, it is due to be denied without prejudice,” the judge said. 

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Trump’s attorneys on Monday accused the government of “unconstitutional censorship” in response to federal prosecutors asking the judge in his classified documents case for a gag order.

In a court filing, Trump’s outraged legal team asked a federal judge in Florida to sanction and fine prosecutors from special counsel Jack Smith’s office, which requested that the court modify Trump’s conditions of release and prohibit him from making future statements about FBI agents who executed a search warrant at Mar-a-Lago on Aug. 22, 2023. 

“President Donald J. Trump respectfully submits this procedural opposition to the May 24, 2024 filing by the Special Counsel’s Office, which improperly asks the Court to impose an unconstitutional gag order on President Trump, as a condition of his pretrial release, based on vague and unsupported assertions about threats to law enforcement personnel whose names have been redacted from public filings and whose identities are already subject to a protective order,” Trump’s lawyers wrote in the filing.

“… [T]he 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,” the defense attorneys wrote.

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Former President Trump and special counsel Jack Smith. Trump’s attorneys accused Smith and his prosecutors of “unconstitutional censorship” in response to a motion for a gag order in the classified documents case in Florida. (Getty Images)

On Friday evening, Smith’s team filed a motion to U.S. District Judge Aileen M. Cannon, who is presiding over the classified documents case, and requested that she prohibit Trump from making statements that “pose a significant, imminent, and foreseeable danger to law enforcement agents participating in the investigation and prosecution of this case.” Trump claimed in a campaign appeal that FBI agents were “locked & loaded ready to take me out & put my family in danger.”

Prosecutors said Trump’s “grossly misleading” claims cited a standard FBI form that details limiting the use of force to emergency situations. The same form was used when federal agents searched for documents at President Biden’s home.

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“Trump, however, has distorted the standard inclusion of the policy limiting the use of deadly force by mischaracterizing it as a claim that the FBI “WAS AUTHORIZED TO SHOOT ME,” was “just itching to do the unthinkable,” and was “locked & loaded ready to take me out,’” Smith’s team wrote in their filing.

The prosecution argued that Trump’s “deceptive and inflammatory claims” exposed federal agents to “unjustified and unacceptable risks,” inviting “threats and harassment” against investigators that would “undermine the integrity of the proceedings as well as jeopardize the safety of law enforcement.” 

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Former President Trump’s Mar-a-Lago resort in Palm Beach, Florida. (Charles Trainor Jr./Miami Herald/Tribune News Service via Getty Images)

Trump’s attorneys countered Tuesday that Smith’s request was “an extraordinary, unprecedented and unconstitutional censorship application” that “unjustly targets President Trump’s campaign speech while he is the leading candidate for the presidency.” 

They requested that Judge Cannon hold a hearing to determine Smith’s “motives and purpose” in filing the gag order motion “on the Friday preceding a holiday weekend,” pointing out that Trump’s defense summation is scheduled to begin in Manhattan on Tuesday for his New York criminal case. The timing, they insisted, violated rules governing how motions are filed and was unprofessional. 

The 15-page motion also referred to Smith and his team as “the Thought Police” and accused prosecutors of being “biased and reckless” and “driven by political animus against President Trump.” 

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Former President Trump’s Mar-a-Lago resort in Florida was searched by the FBI in 2022. (Getty Images)

Trump has repeatedly claimed the indictment Smith filed against him last June was part of a politically-motivated “witch hunt” designed to keep him from winning the presidency. Smith’s team has vehemently denied the allegations and asserted their motives are pure, intended to support the rule of law.

Trump is accused of keeping at his estate classified documents that he took with him after he left the White House in 2021, and then obstructing the government’s efforts to retrieve them. The FBI agents seized 33 boxes of documents in the raid.

The investigation is overseen by Smith, who Attorney General Merrick Garland appointed. Smith has charged Trump with 40 felony counts, including violating the Espionage Act, making false statements to investigators and conspiracy to obstruct justice.

Trump has pleaded not guilty. The case is not expected to go to trial until after the November election. 

Fox News’ David Spunt and Fox News Digital’s Michael Dorgan contributed to this report.