The Trump Defense In Florida Continues to Score Political Points By Baiting Special Counsel Smith Into Foolish Efforts
If "journalists" could distinguish between actual criminal defense efforts and defense-inspired political narratives, there would be less confusion about the real issues.
Captain’s Log: This article is going out for free for a variety of reasons. Among them is the fact that my time to write recently has been limited, and I want to thank all — paid and free subscribers — for their patience. In addition, I want there to be some understanding of what real “legal” analysis of sometimes complex legal issues looks like, and be able to distinguish it from amateur arm-chair opinion-spreading by the well-intentioned but under-qualified “Energizer Bunnies” of the world.
As is made clear below, some efforts being made by the Trump legal team as part of its defense to the indictment in federal court in Florida are far more significant as part of a political strategy than they are as part of the legal defense strategy. The Trump defense team knows this even if some of FPOTUS Trump’s most ardent defenders in the press can’t seem to tell the difference.
More importantly, however, it seems that SC Smith can’t tell the difference as he continues to be put in a position to step on a rake — and then he does exactly that. These events create “news” cycles about the legal case where political messaging gets repeatedly conveyed by the Trump campaign, while SC Smith and his troops wonder “How did we get ourselves into this?”
This past Friday the Trump defense team took another opportunity to pump up the outrage meter over the August 2022 search for classified materials at the Mar A Lago resort. If you follow the intersecting trail of activity crossing back and forth between the legal defense and the political operation, you see in retrospect how the Trump campaign advancing the political narrative has played SC Smith into a corner — and what it might accomplish in the very near future out of the legal case by having done so.
On February 22, 2024, the Trump defense filed a motion to suppress under seal as required by Court order demanded by SC Smith that matters involved in the case not be in the public record until the two sides can litigate what materials should be redacted and kept from public view. The motion was signed and dated by the Trump defense on February 22. SC Smith filed an Opposition, and the Trump defense filed a Reply in normal course, both of which were also filed under seal
On May 21, 2024, pursuant to the Court’s direction, all the documents were filed on the public docket with limited redactions of certain information. I wrote about the motion and the “Assassination Plot Gambit” that immediately sprung from it back in May 25, explaining away some of the claims raised by others as to what the motion to suppress argued in criticizing the FBI’s conduct on August 8 in carrying out the search at MAL.
In the immediate aftermath of the motion being unsealed, Trump-favoring reporting focused on the FBI “Ops Plan” and the “preprinted” language in it concerning “Use of Deadly Force” policy. FPOTUS Trump’s NY trial was still underway when this reporting hit social media, with conservative commentators, so-called “journalists”, and elected officials all spinning out the narrative that the “authorization to use deadly force” against Trump, his family, and the Secret Service if they resisted — was in reality an “assassination plan.”
When he emerged from the NY courthouse, FPOTUS Trump was careful to make his comments about what he had seen in the reporting. Remember, the motion had been filed 3 months earlier by his legal team in Florida — some of whom were sitting next to him in the courtroom in New York. He focused his comments on the media firestorm and not about the contents of the motion itself which he had long known about. This was the pivot from the legal arguments in the suppression motion to the political narrative about an “assassination plan.”
Outrage among Trump supporters in the media and punditry continued to build on May 22 and 23 as the political narrative gained greater traction. All sorts of well-intentioned but nonetheless uninformed commentators were suddenly experts in the lawful “use of deadly force,” law enforcement “use of force” policies, and federal law enforcement search warrant protocols.
SC Smith had the choice to ignore it all or “rise to the bait” and attempt to do something about the building controversy. On Friday, May 24 he did “rise to the bait” and late in the day hurriedly filed a motion in the Florida court to modify the “Conditions of Pretrial Release” for FPOTUS Trump, seeking a “gag order” preventing him from making “deceptive and inflammatory” claims about FBI conduct in connection with the MAL raid. Smith meet garden rake — garden rake, meet Smith.
The political narrative was then back in the legal arena with a big-o-bucket of gasoline poured on top — SC Smith wanted to take away FPOTUS’s First Amendment rights in the middle of the campaign for POTUS!!!! Smith was doing the bidding of Trump’s political opponent, Joe Biden. The Merrick Garland led Biden DOJ was responsible for the decision to indict Trump and to authorize a search warrant of MAL, compared to working cooperatively to resolve an identical dispute over classified documents as had been done with regard to Biden himself.
The Florida judge stepped in at this point and poured a bit of cold water on the flames of outrage by giving the Trump defense team three weeks to respond to the motion to modify release conditions.
On Friday afternoon, June 14, the Trump defense responded and — as a LEGAL matter — put some distance between Trump’s legal defense and the politicial narrative about an “assassination plan” that had driven the flames of outrage. Contrary to the suggestions of some, as a legal matter the Trump legal defense focuses almost entirely on the factual and legal insufficiencies in the motion filed by Smith — as it should have — ignoring almost completely the “outrage” over the MAL search and the conduct of the FBI. It went so far in the direction of emphasizing the First Amendment issues that it captioned the filing “Opposition to Motion for Gag Order.”
Lost in the middle of this circus side-show was the unsealing of some far more consequential motions filed by all the defendants in the Florida case. Some of these issues have been mentioned in open court during hearings in the past few weeks, but the written motions themselves —to dismiss for “spoilation of evidence” among other things — provide much greater clarity on some of the problems. They explain why the Florida judge vacated all the dates leading up to the trial and the trial date itself. There are disputes over discovery and the handling of evidence seized during the MAL search that — if the defense is correct — call into question the viability of continuing with the “classified documents” charges in this case. Explaining the issues raised in those motions — very complicated — will need to wait for another day.
In opposing the “gag order” motion, the Trump defense focuses on the implications of the motion on Trump’s First Amendment rights, his rights to political free speech in the middle of the campaign, and his right to criticize the governmental actors who are responsible for and involved in the effort to prosecute him on charges he claims were brought to keep him from running.
SC Smith’s motion used five examples of comments in the aftermath of the May 21 unsealing of the motion to suppress as justification for seeking to curtail FPOTUS Trump’s right to comment on the case.
A May 21 Truth Social post by FPOTUS Trump raising the issue that was being “reported” on while was in the NY courtroom — and included this: “Joe Biden’s DOJ, in their Illegal and UnConstitutional Raid of Mar-
a-Lago, AUTHORIZED THE FBI TO USE DEADLY (LETHAL) FORCE.”
A May 23, 2024 campaign email that stated that it had been “revealed,” through the unsealing of President Trump’s suppression motion, “that Biden’s DOJ was authorized to use DEADLY FORCE for their DESPICABLE raid
in Mar-a-Lago.” The email went on to say — purportedly quoting Trump — “Joe Biden was locked & loaded ready to take me out & put my family in danger.” This message is the closest cited by SC Smith to adopting the “assassination plan” narrative that emerged from the flames of outrage political narrative. SC Smith called this message “deceptive and inflammatory” and pinned it on FPOTUS Trump directly.
A May 23, 2023 Truth Social post substantially similar to (1), but with FPOTUS Trump saying in addition that the USSS “thought [they] might be ‘in the line of fire.’”
A May 21, 2024 “X” post attributing to Steve Bannon the claim that “the Mar-
a-Lago FBI classified document search was ‘an attempted assassination’ by Joe Biden on Trump and his associates.”
A May 25, 2024 Truth Social post by FPOTUS Trump that was largely duplicative of aspects of (1) and (3), and correctly states: “Biden’s DOJ Authorized Use Of Deadly Force Against President Trump In Mar-a-Lago Raid.”
To understand why the Trump defense responded the way it did — which I cover next — it is necessary to keep in mind that the defense is addressing an audience of one — a federal district judge who was once a federal prosecutor in that Florida court. SC Smith asked for the conditions of pretrial release to be modified, and the response needed to address the Bail Reform Act under which the conditions were imposed, the implications of the change in conditions being proposed, and the factual and legal basis made by SC Smith in his motion.
A response that focused on the “assassination plan” political narrative that arose on and after May 21 is not a legal response. Reflecting a smart defense team, the Opposition begins with an emphasis on the First Amendment and electoral implications of Smith’s request, not his justification:
The Opposition only briefly touches on the circumstances of the execution of the warrant. It referred to the MAL search as “unprecedented” — which no one disagrees with. The only comments about the warrant execution — armed agents and the “use of force policy” is the following:
There were no conceivable safety risks associated with the raid in light of the existing security at Mar-a-Lago, which is undertaken by the Secret Service and other security personnel. Nevertheless, in connection with this unprecedented violation of a former Commander-In-Chief’s home, the Operations Order relating to the raid indicates that the FBI elected to apply its “Use Of Deadly Force” policy.
As for expressing outrage over the circumstances of the “Raid at Mar A Lago,” that’s just about it in terms of what the Opposition has to say. That doesn’t quite scream “Attempted Assassination Plan” now does it?
The Opposition follows that with sections on “Release Conditions,” “Sealing Orders,” “Bail Reform Act,” and “First Amendment and Political Speech.” This is the “Briar Patch” that Trump’s Defense was happy to have been thrown into by SC Smith’s motion because it provides an opportunity for a different political narrative that can be hammered home by the campaign arising out of the legal arena, i.e., Trump’s First Amendment rights were being taken away.
This is unlike trying to ride the “assassination attempt” narrative as a legal argument — that would sound idiotic in a courtroom if the Trump defense tried to defend that narrative as substantively accurate.
But it was the “assassination attempt” narrative that had goaded SC Smith’s motion, so the Opposition had to address the 5 instances where that narrative was raised, as listed above, and were used by SC Smith to justify his motion to impose restrictions on FPOTUS Trump’s free speech rights.
If the Trump legal defense intended to stand on the “assassination plan” narrative as factual, this would have been the point where it embraced it, giving a full-throated endorsement of it and the conservative “journalists” who had fanned the flames of outrage using it the past few weeks. But the legal defense did not do that.
In responding to the 5 instances, the Trump defense addressed 1, 3, and 5 in largely the same fashion. These are the Truth Social posts and the Trump campaign email that comment in one fashion or another on the FBI’s method of executing the search and the portion of the Ops Plan discussing the “deadly force” policy. They include the “Biden locked and loaded” comment, and the variations of the “FBI authorized to use deadly force policy” comments.
The response made by the Trump legal team is that the comments made by the legal defense in its motion had accurately quoted the “use of force” policy in its legal papers with respect to what was set forth in the FBI Ops Plan — without going further. It said.the comments highlighted by SC Smith:
describe[s] the defense’s litigation positions regarding the raid, which are the subject of pretrial motions, and references the “Use Of Deadly Force” policy in the FBI’s Operations Order.”
But what exactly is the “defense’s litigating positions regarding the raid”? I covered that in my earlier post.
The Trump defense has NOT argued that presence of the “use of deadly force policy” language in the Ops Plan, or that the FBI agents were armed, as legal grounds to suppress the search, i.e., that they somehow made the search “unlawful” as a result. Instead, the legal defense argues that the manner of executing the search warrant, including the “use of force” policy language, evidenced FBI/DOJ “bad faith” in the carrying out of the warrant.
“Bad faith” doesn’t make the search unlawful. But is an important concept because a search that is unlawful — in violation of the 4th Amendment — can be “saved” (the seized evidence still used in court) if the Agents conducting the search acted in a “good faith” reliance on the validity of the warrant at the time of the search. This arises out of a Supreme Court case called United States v. Leon. In that case the search was found to have violated the Fourth Amendment — it was “unreasonable” — but the Agents relying on the validity of the search warrant had acted in “good faith” so there was no justifiable reason to suppress otherwise important evidence of criminal activity.
The Trump defense’s “litigating position” is that the MAL search was unlawful because it was overbroad and the warrant laçked “particularity” with respect to the places to be searched and the items to be seized — NOT because the FBI came armed and had the “use of force” policy in place.
[Note: This is a subject matter where the words of dozens of cases — if not hundreds — roll off my lips and through my fingers because I spoken them and typed them dozens and dozens of times over 30+ years doing only this kind of work. That’s why I’m particularly irritated and lose patience when I see people lacking the training, experience, and education on this subject matter write things they THINK sound right to them but get it wrong AND STILL argue with me about whether they are right or wrong.]
Those facts are important on the issue of “good faith” under Leon to save the otherwise illegal search. The Trump defense team put those allegations in the motion to suppress on the issue of “good faith” anticipating that SC Smith, in opposing the motion to suppress, would argue BOTH that the search was lawful, and even if it wasn’t lawful that the “good faith” of the agents should save the evidence from suppression under Leon.
And sure enough, that’s exactly what SC Smith argued in opposing the motion to suppress:
Most interesting, however, is that in the Trump defense’s Reply memorandum — responding to SC Smith’s opposition invoking Leon and “good faith” — is completely silent with respect to the FBI Agents being armed and the language of the “deadly force” policy being included in the Ops Plan.
Instead, the Trump defense argues that the “good faith” issue can only be resolved after an EVIDENTIARY HEARING to fully explore the decision-making and thought-processes of those involved in the approval and execution of the warrant.
THIS is the “litigating position” the Trump legal defense referred to on Friday when it opposed the motion for a “gag order” and modification of Trump’s pretrial release conditions.
Just imagine the political mileage the Trump campaign would get out of a public suppression hearing where Trump’s attorneys get to cross-examine various Biden DOJ actors who authorized seeking and obtaining a search warrant for MAL. For political purposes it is a dream come true — even if as a legal matter the effort proved to be unsuccessful.
It is important to remember that many of the DOJ officials who were involved in the decision-making are no longer connected to the case. The search happened before SC Smith was appointed. Other than AG Garland, no one at DOJ is supposed to have any involvement in the case, so that is not a basis to keep them from testifying. Only the DOJ lawyers who moved over to SC Smith’s Office once he was appointed are potentially off-limits for testimony IF — and it is a big IF — an evidentiary hearing into these issues is allowed.
Whether or not to have such an evidentiary hearing is a matter solely in the discretion of the trial judge — and there is no basis to appeal her decision if she chooses to have one. It is entirely up to her.
The lefty legal beagles in the media will scream like “Banshees in the Night” if the Judge decides to have an evidentiary hearing — meaning cross-examination of DOJ and FBI officials involved in the decision to indict and search MAL — on the issues raised by the motion to suppress. I think that might be keeping Jack Smith awake at night. If there is going to be such a hearing, my guess is that it will come in mid-to-late July.
Going back to the Opposition to the motion to impose a gag order, the Trump legal defense puts some distance between it and the “assassination plan” chorus in conservative media.
The argument of the Trump defense here, and applied equally to other comments made about the “assassination plan” narrative, is that “deceptive” and “inflammatory” speech cannot be prohibited by the Government under the First Amendment. The Trump defense doesn’t make any effort to defend the accuracy of the “assassination plan“ narrative on the facts. If it wanted to it could have done so — but it didn’t.
Finally, the legal defense also puts distance between itself and the Bannon comment that the “classified document search was ‘an attempted assassination’ by Joe Biden on Trump and his associates.” The Opposition states that granting SC Smith’s motion based on Bannon’s comment was akin to the “heckler’s veto” where a third party’s response to a speaker becomes a basis to regulate the free speech rights of the speaker.
Again, the opportunity was there to defend Bannon’s comments as accurate on the facts. Rather than do so, the Trump legal defense is that Trump’s First Amendment rights cannot rise of fall based on how third parties receive them and what they say or do in response.
THIS is what legal analysis looks like to the extent something this complicated can be boiled down over 6-8 hours into something that can be understood by lay readers — hopefully. It takes more than just a PACER account and the ability to cut and paste in order to fully understand what is in play here.
The issues in Florida are running on two parallel tracks — one is legal and one is political. The problem comes from folks who are seeing and reporting on happenings through a political lens, but claiming their analysis is as to the legalities without realizing there is a difference between the two.
P.S. The kefluffle over the past few weeks about some of the issues raised above has done some damage to the fundraising efforts necessary to allow me to continue representing January 6 defendants at little or not cost to them. My focus has always been on defendants with unhappy or distrustful relationships with attorneys appointed to represent them, and who lack the financial ability to hire a lawyer of their choosing. I’m easy to find, and most of my clients have resulted from a simple email or phone call.
But some who have taken offense to my willingness to correct them on legal issues when they are wrong, decided that one way to try and silence my criticism was to denigrate my work and directly call into question my competence. Dan Bongino — that reference is directly to you. You will never enjoy any favorable comment from me again. Rather, the opposite is true.
To those who believe I should have anticipated this and avoided the conflict altogether, those comments reveal you as never having had any integrity of professional reputation that was important to you to defend.
I have 29 clients charged in connection with January 6 who still have active cases pending in either the District Court or the Appellate Court. I have had several other J6 defendants whose cases are over ask if I would assist them in gaining some form of relief if the Supreme Court overturns their convictions for “obstructing Congress” in the Fischer case that will be issued next week.
The only way I can continue doing this work is if the fundraising does not fall off. I am not “appointed” counsel. The Court will not pay me if the fundraising dries up. I am “retained” counsel working on a pro bono basis — at no charge to my client — and I’m able to do this only because of the generosity of subscribers here and those who donate to the January 6 Legal Defense Fund.
Right now on my calendar over the next 90 days, I have five trials and six sentencing hearings. I expect to make no fewer than 5 more trips to DC before the end of September, totaling probably close to 40 nights in DC hotel rooms.
I just returned yesterday from a six day trip, and combined with a slowing of donations over the past 4 weeks, the funds available for the work ahead is quicly running out. For the first time in 32 months, I would need to think about whether I can commit to any other clients if my phone was to ring tomorrow.
So, if you have supported my efforts in the past, and remain willing and able to do so, now would be a particularly opportune time to receive your assistance.
I appreciate your astute analysis. Tossed some money into the pot for you.
Probably got my name on the list if the Uniparty manages to steal the election, but I'm an old man and short of time anyway. If not for the huge success of Bidenomics in crushing the economy, I'd give more.
I missed the spif with Bongino. I use to catch all of his podcasts but recently have been a little burnt out and have opted to listen to music more. I have been well plugged in to everything since the 2015 announcement of Trumps candidacy and the congressional hearings into the wicked one and all the deleted emails. There have been a lot of ups and down since then. Now its like everything has snowballed and something big is coming down the pipe. We are just running around in circles waiting for the big smack. All the hot air and breathless commentary seems senseless anymore. Ship for one is worth the read, because he skips the hyperventalating and delivers the details.
I will find and listen to what Dan said about you, I am sure I will be dissappointed with him when I do.
Thank again Ship. You are in my top 10 all time favorite reads. You probably will find this amusing, but I think you shoud be Trumps AG. I would love to see you taking some roundup to the weeds at DOJ.