Left: Judge Aileen Cannon (U.S. District Court for the Southern District of Florida); Right: special counsel Jack Smith (AP Photo/J. Scott Applewhite, File)
A series of pretrial hearings in the Mar-a-Lago documents case on Monday resulted in some tense interactions between the court and two prosecutors — with one later issuing a public apology.
The majority of the day at the one-judge courthouse in Fort Pearce, Florida, was spent in oral argument over a long-shot motion filed by Donald Trump’s attorneys seeking to dismiss the indictment over how special counsel Jack Smith’s office is funded. The defense alleges that the funding mechanism is a violation of the appropriations clause.
While unlikely to yield a formal win for the defense, the fact of the hearing even being held is a procedural victory for the 45th president in terms of the delay that multiple ancillary inquests — while sideways departures in the case — have consistently pushed the trial date back so far as the proceedings crawl. As of now, the date of a would-be trial has been indefinitely postponed by the court itself as U.S. District Judge Aileen Cannon entertains a bevy of motions from both sides.
The court’s behavior at every stage of the prosecution has generated intense controversy. The treatment meted out to DOJ attorneys on Monday is likely to further propel such criticism going forward.
The heart of the defense appropriations argument is that Smith and his team are not truly independent when he relies on congressional funding and is being overseen by the federal government.
Arguing for the government, prosecutor James Pearce said Trump’s claims were much ado about nothing because special counsels have long been able to access congressionally appropriated funding as a matter of long-standing practice within the U.S. Department of Justice, according to courtroom reports by MSNBC personality Katie Phang and Courthouse News Service reporter Erik Uebelacker.
In an admission that would later prove important, the DOJ conceded the special counsel was operating with “limitless” appropriations — by tapping into a permanent and preexisting funding source.
The judge, however, honed in on the size of the outlays — taking a step away from the defense’s actual argument about the basic funding source — and appeared to catch the government attorney off guard.
Pearce, pushing back, said he was unsure about whether spending up through the present was closer to $5.9 or $9 million — but offered to file a supplement with the court containing the exact details.
Cannon took stock of the public nature of such documents — and criticized the government for taking so long to file their reports.
But the nitty-gritty focus clearly struck a nerve.
Pearce again pushed back — saying he could not think of any other case where an inquiry into line item spending was, in any way, relevant.
The judge began to make a point about “limitless” spending by a special counsel raising a “separation of powers” concern — when Pearce chimed up again to say that all the case law he was aware of said a court could only focus on the source of the funding and the purpose of the funding, or, in other words: not the amount at all.
“Don’t interrupt me,” Cannon said.
Ultimately, the court declined to issue a ruling on the issue.
Such a reservation of judgment was largely anticipated because the dispute is part and parcel of a defense motion aimed at the special counsel’s allegedly troublesome hiring and funding. Last week, a hearing was held over Smith’s appointment. Cannon previously split the motion into two hearings to be held on two separate days.
More Law&Crime coverage: Jack Smith supports his own legitimacy with receipts of Bill Barr’s Bush-era appointments of special counsels
The Monday hearing schedule also set aside the afternoon for oral argument over Smith’s motion to modify the conditions of Trump’s pretrial release by instituting a gag order. That request came in light of online claims made by the defendant that the FBI was authorized to use “deadly force” during the Mar-a-Lago raid.
In a recent filing, the special counsel called out Trump for telling his online audience that “the FBI was out to kill him and his family.”
To hear the government tell it, the court should prohibit further such statements because they “pose a significant, imminent, and foreseeable danger to the law enforcement professionals involved in the case” and are not protected under the First Amendment.
Arguing for the government during the second Monday go-round was prosecutor David Harbach.
The judge asked the prosecutor a series of questions that sought to establish how and why threats made by others should or could be connected to the presumptive GOP presidential nominee. Oftentimes, the court’s questions reportedly came immediately as the government lawyer was answering the prior question.
Eventually, the pace seemed to frustrate Harbach.
During an exchange about the names of law enforcement witnesses, the lawyer said redactions alone simply were not enough.
“Mr. Harbach, I don’t appreciate your tone,” Cannon said.
The judge then reminded the lawyer about an earlier tense exchange and their concomitant chat about decorum.
“I expect decorum in this courtroom at all times,” Cannon continued the reprimand. “If you aren’t able to do that, I’m sure one of your colleagues can take up arguing this motion. Let’s reset.”
Harbach would go on to issue a mea culpa for his tone.
“I just want to apologize about earlier,” the lawyer told the judge, according to CNN. “I didn’t mean to be unprofessional. I’m sorry about that.”
As earlier, the second hearing also ended without a bench ruling.
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