Jack Smith (AP Photo/Jacquelyn Martin), Stephen Miller (Photo by Brandon Bell/Getty Images)
After the judge in the Mar-a-Lago case refused to allow a coalition of Republican attorneys general to weigh in on special counsel Jack Smith’s request for a gag order on defendant Donald Trump, the legal group of former Trump White House senior advisor Stephen Miller is trying to intervene on the same issue.
America First Legal Foundation (AFL), like the AGs that U.S. District Judge Aileen Cannon rejected, advanced the argument that the special counsel’s attempt to modify Trump’s pretrial release conditions by imposing a gag order and “prior restraint” on speech during his reelection campaign “practically ignores” the First Amendment.
The special counsel on the eve of Memorial Day weekend moved to modify Trump’s bond conditions, citing to the his “grossly misleading” and “inflammatory” Truth Social posts, which Smith said put law enforcement and possible trial witnesses in “foreseeable danger” with falsehoods about the Mar-a-Lago search, specifically claims that the feds were authorized to use “deadly (lethal) force.”
“Those statements create a grossly misleading impression about the intentions and conduct of federal law enforcement agents—falsely suggesting that they were complicit in a plot to assassinate him—and expose those agents, some of whom will be witnesses at trial, to the risk of threats, violence, and harassment,” Smith argued in May.
Trump’s defense lawyers have since responded by calling Smith’s move a “shocking display of overreach and disregard for the Constitution” in search of an “unconstitutional gag order.”
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AFL, for whom Miller serves as president, is now seeking Cannon’s permission to weigh in as an amicus curiae, Latin for friend of the court, having filed a proposed brief that supports the arguments of Trump’s defense.
“The government has moved the Court to impose conditions of release on President Trump that would interfere with his First Amendment free-speech rights. The government claims to do so in the name of safety and to avoid prejudice to this proceeding,” the group said. “But the government falls far short of overcoming the constitutional scrutiny that applies to its request for a prior restraint on President Trump’s speech.”
Claiming that the the special counsel’s gag demand “practically ignores the Constitution, mentioning the First Amendment’s constraints only in passing,” AFL said that Smith did not show that Trump’s posts about the Mar-a-Lago search amounted to “incitement.”
“President Trump’s statements are not an incitement to violence,” read the one of the brief’s headings, under which AFL asserted Smith did not meet the “extremely high standard” for silencing Trump over the course of the Espionage Act case.
The proposed brief was submitted by local Florida counsel, AFL’s Daniel Z. Epstein and, notably, by Judd E. Stone II, the former solicitor general in Texas Attorney General Ken Paxton’s (R) office.
The non-party to the case noted that Trump’s team consented to their brief’s arguments and the special counsel didn’t take a position.
Eyes are also on the Mar-a-Lago case on Friday as other groups of amici curiae argue in court both for and against the constitutionality of Smith’s power to prosecute.
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