Judge Aileen Cannon, pictured left (U.S. District Court for the Southern District of Florida), (right) special counsel Jack Smith (AP Photo/J. Scott Applewhite, File)
The judge in the Mar-a-Lago case moved quickly to dispose of special counsel Jack Smith’s gag order request the morning after former President Donald Trump’s lawyers supported sanctions for prosecutors over their decision to count a holiday weekend email thread as “meaningful conferral.”
Just hours earlier, Law&Crime reported that Trump lawyers on Memorial Day demanded that U.S. District Judge Aileen Cannon take the prosecution to task for their filing at the end of last week looking to stop Trump from putting law enforcement in “foreseeable danger” with falsehoods about the Mar-a-Lago raid — particularly, statements on Truth Social claiming that the feds were authorized to assassinate Trump.
The judge did, in fact, take Smith’s team to task.
While Cannon’s order on Tuesday technically amounted to a draw, since the judge denied both motions without prejudice (meaning they may be brought again), she scolded Smith’s team in no uncertain terms for poor lawyering.
“[T]he Court finds the Special Counsel’s pro forma ‘conferral’ to be wholly lacking in substance and professional courtesy,” Cannon wrote. “It should go without saying that meaningful conferral is not a perfunctory exercise. Sufficient time needs to be afforded to permit reasonable evaluation of the requested relief by opposing counsel and to allow for adequate follow-up discussion as necessary about the specific factual and legal basis underlying the motion.”
“This is so even when a party ‘assume[s]’ the opposing party will oppose the proposed motion, and it applies with additional force when the relief sought — at issue for the first time in this proceeding and raised in a procedurally distinct manner than in cited cases — implicates substantive and/or Constitutional questions,” she added.
The judge also warned of sanctions if the Special Counsel’s Office and Trump’s lawyers don’t follow three steps when certifying future conferrals. Cannon pointedly criticized “editorialized footnotes”:
Moreover, all certificates of conference going forward shall (1) appear in a separate section at the end of the motion, not embedded in editorialized footnotes; (2) specify, in objective terms, the exact timing, method, and substance of the conferral conducted; and (3) include, if requested by opposing counsel, no more than 200 words verbatim from the opposing side on the subject of conferral, again in objective terms. Failure to comply with these requirements may result in sanctions. In light of this Order, the Court determines to deny without prejudice Defendant Trump’s Motion to Strike and for Sanctions 583 . Signed by Judge Aileen M. Cannon on 5/28/2024. (jf01) (Entered: 05/28/2024)
Jack Smith’s team asserted last week that any statement about the feds having the go-ahead to take out Trump during the Mar-a-Lago search is “grossly misleading,” “inflammatory” and poses an “imminent danger” to law enforcement officers that may be trial witnesses.
In a footnote, seemingly one Cannon remarked on, the special counsel told the court that “within just the last few hours, Trump has continued to issue false statements smearing and endangering the agents who executed the search.”
In the defense motion to strike from Monday, Todd Blanche and Christopher Kise asked Cannon to “make civil contempt findings” and to issue sanctions. They said prosecutors did not give the defense an adequate opportunity to confer over the issue. Rushed holiday weekend emails, they said, didn’t cut it.
“The failure to meaningfully confer is even more troubling in light of the fact that the parties were assembled before the Court on Wednesday, May 22, 2024. The Special Counsel’s Office cites in the motion a May 21, 2024 social media post by President Trump,” the defense told the judge. “If the Office truly believed that President Trump’s constitutionally protected speech posed the type of threat that they claim in the Motion, then they should have discussed the issue with counsel in person rather than raising it via email on a Friday evening two days later.”
Characterizing prosecutors’ concerns as “unsupported histrionics,” the defense said the Special Counsel’s Office bid to modify Trump’s conditions of pretrial release ignored Cannon’s “prior warnings” and, therefore, punishment and an evidentiary hearing should follow.
“[I]n light of the Office’s blatant violation of Local Rule 88.9 and related warnings from the Court, 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,” the defense motion said.
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