Watch That Tone: Judge Aileen Cannon Scolds Prosecutor During Hearing in Classified Docs Case

AP Photo/Jose Luis Magana

I know I've shared this before, but the Number One lesson I learned on my very first day of law school was: "Don't piss off the judge." It's axiomatic — you do yourself zero favors by aggravating the person who holds your fate in their hands. You can be a zealous advocate for your client while still being respectful of the person in the black robe with the gavel who's ultimately going to rule on whatever issue you're arguing before them. 

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Apparently, Special Counsel Jack Smith's prosecution team forgot that rule while arguing before Judge Aileen Cannon in Monday afternoon's hearing in the classified documents case against former President Donald Trump. Cannon set a series of hearings on substantive issues that need to be sorted out in the case. 


Judge Cannon Set Multiple Hearings on Constitutional Issues
and the Anti-Trump Brigade Is Big Mad


On Friday, the parties (and several amici (friends of the court)) presented argument on Trump's motion to dismiss based on the unlawful appointment of Smith under the Appointments Clause. Monday morning, they argued Trump's motion to dismiss based on the unlawful appointment of Smith under the Appropriations Clause. 

Monday afternoon's arguments were regarding Smith's motion to modify the conditions of Trump's release — namely, requesting the imposition of a gag order on the former president. 

An informal gag order being considered during a second Monday hearing in the classified documents case against former President Trump would join several other such restrictions in his separate criminal cases if implemented.

The hearing, beginning at 3:00 p.m., will feature arguments into whether Trump's conditions of release should be modified and expanded to some of his speech. Special Counsel Jack Smith's team made the motion to prevent the former president from making remarks about the FBI's raid at his Mar-a-Lago property, specifically regarding the authorized use of force.

The prosecution has pointed to language claiming the FBI agents were "locked and loaded and ready to take me out," suggesting the potential of it to endanger law enforcement officers.

They have noted that the authorized use of force is routine and is the same that was authorized for a similar seizure of classified documents at President Biden's home.

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But during the course of the argument, prosecutor David Harbach was dressed down by Cannon after apparently taking a tone the judge didn't appreciate. 

A seemingly annoyed Cannon told Harbach at the day's second hearing that one of his colleagues with the prosecution could take over if he was not able to adjust his tone or act within the decorum of the court.

Her rebuke came as Harbach argued that the informal gag order was necessary ahead of the trial as Trump's claims relating to the 2022 raid of his Mar-a-Lago property have the potential to endanger law enforcement officers.

He provided examples of actions from supporters of Trump after statements the former president made publicly, including an attack in Cleveland, Ohio after the search warrant was first executed.

Harbach claimed that Trump should be prevented from making statements that are specific or imminent to the case.

As part of his argument, the prosecutor noted several FBI agents involved in the raid had their names made public. When Cannon asked who made those names public, he would not say, but claimed the prosecution was aware. The judge was seemingly irritated by the response, and questioned why the prosecution wouldn't come forward with that information, allowing for the person who released the names to be prosecuted.

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CNN characterized the exchange as tense: 

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.

This isn't the first time the prosecution has stepped in it in the case. And Cannon hasn't been overly eager to impose a gag order.


Judge Aileen Cannon Is Concerned, Disappointed in Jack Smith's
Treatment of Sealed Materials

DENIED: Judge Cannon Shoots Down Special Counsel Jack Smith's
Request for Trump Gag Order


There is another hearing set for Tuesday regarding Trump's "Motion for Relief Relating to the Mar-a-Lago Raid and Unlawful Piercing of the Attorney-Client Privilege," and Cannon likely won't rule on any of the motions immediately. But stay tuned because when she does, there will undoubtedly be a lot to unpack. 

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