The Trump Campaign Makes Political Gambit By Claiming An "Assassination" Plot -- And Special Counsel Jack Smith Takes The Bait
Will this be his path to the Eleventh Circuit to Seek Recusal of the Florida Judge That All His Fanboys In The Media Have Been Urging Him to Find?
The Judge in the Florida documents case last week continued to issue Orders authorizing the public filing of motions that have been pending for some time. Under a protective order sought by Special Counsel Jack Smith, these motions have certain information redacted that is not yet meant to be part of the public record. So for many weeks the process happening behind closed doors is that the parties have been exchanging suggested redacted versions of these motions until all sides are satisfied. At that point the Judge issues and Order for the motions to be filed on the public docket.
So, it is important to understand that while the Defense Motion to Suppress evidence taken during the Mar A Lago search is stamped as having been filed May 21, 2024, it was actually filed under seal with the Court on February 22, 2024. So everything that follows below was known between the parties and to the Court for about 3 months. Which makes the fact that the SCO was blindsided by the events of Wed. through Friday even more hilarious.
I want to make one point here right at the start, and will call out any comments that engage in bad faith arguments to the contrary: The following are different questions with different responses:
Whether the DOJ and FBI were justified in resorting to use of a court issued search warrant in what was an ongoing dispute between FPOTUS Trump and the Biden Administration over the return of documents taken to MAL at the end of the Trump Administration. [Note that I didn’t say “who” took them to MAL. That has turned out to be an interesting question.]
Whether in planning to conduct the court-approved search the FBI should have taken more care in drafting the planning documents on the subject of the application of the long-standing DOJ/FBI policy regarding authorized use of deadly force.
I was involved in very public spats on “X” with regard to the second issue, and many less-than-knowledgable “pundits” attacked my points as if I was defending the DOJ/FBI as to the firs issue. At no point have I EVER said that use of a search warrant for former President Trump’s residence at MAL was justified. In fact, in the days after some of the paperwork was released I pointed to problems that I thought could lead to a suppression of the search. I did an almost 2 hours Spaces in the days after the search with Margot Cleveland of The Federalists when we discussed problems with the search and its unprecedented nature.
When the motion to suppress was released this past week, the early reporting talked about “Use of Deadly Force” being authorized in the “warrant.” I pointed out that wasn’t true because nothing in any of the paperwork for seeking a “warrant” deals with use of force. The only issues in a warrant that speak to the manner in which a warrant shall be served concern “No Knock” (not employed here) and time of day for serving which is normally between 6:00 am and 10:00 pm. Night-time service requires express court approval on the face of the warrant itself.
Later it was obvious that the references to the “warrant” were made by a pundit who didn’t understand the document being referred to. It was actually the FBI 888, the “Operations Plan” document created internally at the FBI ahead of conducting a search. The Ops Plan contained the references the “Use of Force” policy — as do all FBI 888 Ops Plans since the language is part of the macro into which operational information is typed. .
It is also worth remembering that at the time of the search Jack Smith had not yet been named Special Counsel — FPOTUS Trump had not announced yet that he was running again in 2024, and the investigation of both the documents case and the January 6 case were in the hands of Biden DOJ appointees.
In the Motion to Suppress, the defense took what is standard language in an FBI created document used in planning to conduct a search and fashioned it into a political narrative that advanced its quite accurate claims about the documents case being an unprecedented effort to go after FPOTUS Trump in order to keep him off the 2024 ballot.
The story quickly advanced into the political bloodlines of the campaign when Rep. Marjorie Taylor Green made the public claim that the FBI planning document was actually an operational effort by the DOJ/FBI to take the opportunity to assassinate FPOTUS Trump if one presented itself.
But let’s look at the politics and how Jack Smith is now engaged in an operation to throw gas on the fire in the hope that — well something, I’m not exactly sure what.
As a political question, while not accurately framed, the “assassination” plot narrative is no more egregious than false narratives run by democrat operatives against Trump in the years and months leading up to the 2016 election. Stories about back-channel communications to Putin, the Alfa Bank connection to the Trump Campaign computer system, the existence of a “pee tape” involving prostitutes in a Moscow hotel room — all of the same type, all engineered against Trump, and all run in some fashion by Democrat party operatives, members of the Clinton Campaign, and willing dunces in the Obama DOJ.
So now they are forced tor respond to a political narrative that has caught fire, which I guess could be most “diplomatically” described as being built around some form of instruction within the FBI to plan for the potential outbreak of violence between the FBI and whoever might try to block the search from taking place.
This is all taking place while trump is being prosecuted in what is obvious to all now is a sham show-trial in New York state court based on a ridiculous legal claim that relies on liars and con-men for crucial evidentiary support. Now he goes out in the press as that trial is ending and announces that Biden’s DOJ set him up to maybe be executed at MAL with an unprecedented search warrant as an excuse to be there.
First they try to bankrupt him, then to put him in jail, and now try to have him killed — all to keep him from maybe winning the election and becoming POTUS again in 2025!!!!
As political theater, Trump couldn’t have written a script any better than the one Democrats and Biden have handed him. Beating back false narratives can be tough — as Trump supporters know. But here the level of comedy is enhanced by the fact that Trump is advancing the narrative through a legal process that the Biden DOJ set in motion, and the Biden campaign is forced to sit on its hands on the sidelines while SCO Smith charges forward as its spear-catcher. So, let’s turn to what the legal filings say.
I’m not going to spend any time right now on the substantive merits of the motion to suppress. This is an area where I developed a lot of substantive expertise as a prosecutor through litigating dozens of such motions, mostly in drug cases. So I’ll come back to do a more in-depth analysis of the legal merits of motion to suppress and opposition in few days. But I will note that one of the first arguments made in the motion is that the warrant was “overbroad” and “lacked particularity” — the points I made in the days after the search was conducted as a basis to challenge the search and potentially have evidence suppressed.
I’m going to focus today on Smith’s filing late on Friday night, seeking to “modify” the terms and conditions of Trump’s pretrial release to make him stop saying mean things about the FBI.
So what is in Trump’s motion that spun up SCO Smith so much that he had to get a filing before the Court on a Friday night before a three-day holiday weekend to kick off the summer — which seems like an unforced tactical error to me right off, and smacks of desperation to get something else — ANYTHING — into the news.
It all revolves around claims made in the motion to suppress at page 4:
That is it — that is all the Trump defense wrote on this subject. Just a brief observation, almost in passing, about one part of the “Operational Order.” No breathless claims about “assassination” plots or plan by the FBI to engage the USSS in a shoot-out which has sucked so much of the oxygen out of a particular corner of X for 72 hours.
ALL of that has come from pundits online with no experience in writing these Ops Plans, writing search warrants, approving search warrants, supervising the execution of warrants, or litigating them in court after the fact.
But it is the false narrative that has flowed from the online commentators which Trump commented on four days ago — saying:
Note that Trump isn’t making the claim himself — his attorneys in the Florida case — Todd Blanche and Emil Bove who have been sitting next to him every day in trial in New York — didn’t make that claim. Trump’s post on Truth Social expressly referred to “Reports” he had seen.
Three days later he made another post — this time after the wildfire has raced around the internet following Greene’s “assassination” claim:
Both of these were attached as exhibits to SCO Smith’s Motion to Modify Terms and Conditions of Pretrial Release filed late on Friday night.
Conditions of pretrial release are provided for by the Bail Reform Act, and are normally imposed at the beginning of a federal criminal investigation. They remain in place until the case is concluded, and both parties can ask for modifications to the terms based on developments in the case at any time.
Trump was given a “Personal Recognizance Release” — which is pursuant to 18 U.S.C. Sec. 3142(b).
(b)Release on Personal Recognizance or Unsecured Appearance Bond.—
The judicial officer shall order the pretrial release of the person on personal recognizance, or upon execution of an unsecured appearance bond in an amount specified by the court, subject to the condition that the person not commit a Federal, State, or local crime during the period of release and subject to the condition that the person cooperate in the collection of a DNA sample from the person if the collection of such a sample is authorized … unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.
These are the only “conditions” for a Personal Recognizance Release.
As I note in more detail below, Smith’s motion gets this wrong. But here is a screen shot from the top of Doc. 17 in the Trump case file in Florida:
It says so right near the top — “Personal Recognizance Release.”
To add conditions in the manner that SCO Smith is now seeking, the Court must move its analysis to 3142(c):
(c) Release on Conditions.—
(1) If the judicial officer determines that the release described in subsection (b) of this section will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community, such judicial officer shall order the pretrial release of the person—
….
(B) subject to the least restrictive further condition, or combination of conditions, that such judicial officer determines will reasonably assure the appearance of the person as required and the safety of any other person and the community, which may include the condition that the person—
There are a list of 14 possible “special conditions” listed following the paragraph above. A court can impose one or more, but with the express limitation that it impose the least restrictive condition or combination of conditions to address the problem identified that poses a “risk of flight” or “danger to the community.
None of the 14 listed conditions would address the claim made by SCO Smith, and none of the 14 listed conditions could be construed as allowing for the imposition of a “gag” order. The only one that is close reads as follows:
(xiv) satisfy any other condition that is reasonably necessary to assure the appearance of the person as required and to assure the safety of any other person and the community.
The motion by SCO Smith addresses several statements it attributes to Trump — although — as noted above — it seems that Trump’s comments had generally been a comment on what he has seen others say about the search of MAL, and not what he has said himself. The defense claims about the “provocative” nature of the search have been made by his attorneys in court filings — but all they said is set forth above.
After paraphrasing some of the online claims that Trump commented on, the SCO made the following near comical claim:
These deceptive and inflammatory claims expose the law enforcement professionals who are involved in this case to unjustified and unacceptable risks: they invite the sort of threats and harassment that have occurred when other participants in legal proceedings against Trump have been targeted by his invective.
What exactly are the downsides for the FBI Agents working for Smith’s SCO who participated in the search? Are they going to refuse to testify out of fear because of what they read on X? Are they going to change their testimony to be more favorable to Trump in order future complications, thereby undermining Smith’s case? Is that what Smith fears might happen to his case if these kinds of false narratives continue to evolve from court filings by the parties that delve deeper into facts that have been hidden so far by protective orders?
So he should spare us all the “crocodile tears” over “deceptive” and “inflammatory” claims — parts of the indictments can be described in the same way.
The Court has previously underscored its “independent obligation to protect the integrity of this judicial proceeding,” ECF No. 101.
This is the second of two references SCO Smith makes to a comment made by the Court with regard to a separate issue — one which was not squarely before the Judge, and about which she asked for further information from the parties so she could better assess it.
That issue involves allegations of unprofessional and unethical conduct by Jay Bratt, who leads the Florida prosecution. Bratt is now detailed to the SCO, but prior to that he was the senior Biden DOJ official heading up the two investigations of Trump. That incident took place in D.C., and I believe it remains a matter before the District Court there. Given that the outcome might have an impact on the Florida case, the Florida judge is — not surprisingly — interested in the specifics and the status of the issue.
So SCO Smith is not using her words to prod her in the direction he wants to go — under circumstances where she has already been critical of tactical and strategic decisions made by SCO Smith since taking over the case. The clear import is a claim that if she is not willing to take steps to address this “assassination” claim narrative to protect the FBI from these claims, then she really isn’t interested in “protecting the integrity of the judicial proceeding.”
So, in SCO Smith’s world, repeating mean things said by others about how the FBI addressed the operational details of an about-to-be-served warrant, requires the same level of judicial investment as does whether unethical acts by a DOJ lawyer were made towards counsel for a target in a criminal investigation.
But here is the one that really irks me about Smith’s motion:
Such a prohibition will also minimize further prejudice caused by the defendant directing false and inflammatory messages regarding the facts of this case to potential jurors who may be summoned by the Court for jury service in this matter.
This is comical to me because it comes from a DOJ Official who has used the device of a “Speaking Indictment” to pollute the public consciousness with ALLEGATIONS of criminality that are the product his computer keyboard.
Rather than initiate the case with a 4-5 page indictment that included only the NECESSARY allegations to properly provide notice to a criminal defendant of the basis of the charges against him, the Biden DOJ has opted for a process — followed by the Special Counsels — of drafting and publicizing charging documents that read like books where the ALLEGATIONS are stated as if they are already established facts. But the supposed evidence supporting those allegations has not been tested by the defendant via cross-examination or the presentation of contrary evidence.
I’ve lived with that reality for nearly three years in defending January 6 clients, and the practice is beyond abusive. I could not begin to count the number of “facts” alleged in indictments that turn out to not be supported by the evidence in the manner claimed in the indictment. I’m beyond 100% sure that there are many passages in both the Florida indictment —and I know for certain in the D.C. Indictment — for which there is a significant amount of evidence that undermines or contradicts the ALLEGATIONS made by SCO Smith’s computer keyboard.
The motion is also noteworthy for the fact that he liberally quotes from the written opinion of the D.C. Judge who imposed a “gag” order on Trump. The findings in that Order and the limits imposed by that Judge do not limit in any way what the Florida judge can do in her case. It would be very interesting to see an evidentiary hearing take place that led to a written order by the Judge in Florida on the same or similar issues. I suspect Smith might not receive something quite as favorable as what he received in D.C.
The Motion actually includes a misstatement of the conditions already imposed. Right at the top of his Release Conditions — as I noted above — it says “Personal Recognizance Release. That is under Sec. 3142(b).
Smith’s motion falsely claims the release was under 3142(c) — also described above — and that all the Court needs to do is add to the conditions already imposed.
That is not correct. There was never a detention hearing where a judicial officer found either a “flight risk” or “danger to the community” that required the imposition of conditions under Subsection (c).
So, what Smith need to do is ask for a detention hearing, and then put on evidence that Trump poses a “danger to the community” with his First Amendment activities.
THAT would be a show I might have to travel to Florida to watch in person.
So what is this hastily thrown-together motion really after if the prospects of any actual relief in Florida seem dubious? Well, the lefty legal beagles who are almost always wrong in their pronouncements are back with the their old standard — “When she outrageously rules against Smith, he can take her to the 11th Circuit and get her thrown off the case.”
This is actually an issue that Smith could go to the 11th Circuit on if she refuses to grant him the relief he is seeking. Motions to modify conditions of release may be appealed while the case is still pending. But her decision to do so or not is a question left to the exercise of her “sound discretion” and I don’t think a decision either way — for or against Smith — is the kind of decision that the 11th Circuit is going to look at and say the outcome was an “abuse of discretion.” But even if they did, it is such a minor squabble that I don’t see any prospect that it would be the kind of determination that would lead the 11th Circuit to order her off the case.
The SCO is going to need to come up with something much more serious than that as an error by her — and something other than “She prevented us from having out trial before the election like we needed.”
I despise this lawfare whether or not the FBI has followed SOP in on the Former President’s home. For two years the Office of the President has been denigrated by its treatment of President Trump as Standard Issue, Common Criminal, in the courts, and his home and right to protection. SOP would be a reasonable excuse except that there is nothing standard around raiding the property of a former President, or dragging him to court or gagging him. It is unseemly for our nation nationally and globally. I find it absurd that the AG is unable to modify an FBI SOP so it fits its target recognizing he’s the former Head of State. We have never seen this happen to our republic, not even during Watergate.
Thank you for explaining the details of the operational use of force issue that has overtaken Twitter. While the details certainly support a position that the FBI and DOJ did not intend to assasinate Trump. It seems clear that despite the fact that this was the first ever raid on a former president, the DOJ and FBI did not dot their I’s or cross their Ty’s with regard to paperwork or optics. They seemed quite confident that optics were on their side. Now because of their sloppiness, they’ve started a dumpster fire. IMHO their recent filing is another mis-step.
Theyve lost the narrative on this case and all the other cases. Their last hope is the Merchan case. While a conviction is likely, the ramifications to NY’s reputation will live on after the election and it’s predominantly these insane attempts to criminalize Trump that are likely to push him to a win. I seriously doubt the title convicted felon will hurt Trump as much as NY’s reputation of injustice and targeting.