Cannon is due to hold a separate hearing Monday afternoon on the government’s request for a court order barring him from making unfounded accusations against the FBI — a hot-button topic just days before Trump is due to face off on live television against President Biden in the first presidential debate between the presumptive candidates of the major parties.
At the morning session, Trump lawyer Emil Bove decried the proposal to limit Trump’s ability to make such allegations, calling it “a truly extraordinary effort to gag his ability to speak at a debate” and on the campaign trail.
The request followed public statements made by Trump in which he suggested FBI agents came to his property in August 2022 in the hopes of using deadly force against him.
In fact, according to people familiar with the investigation who spoke on the condition of anonymity to describe internal deliberations, agents deliberately timed their search of his Mar-a-Lago property to take place when Trump was not there.
Bove said his client is “very much aggrieved,” by the criminal charges he faces, and argued that the pending argument over a new gag order is just the latest example of how the criminal justice process has been used unfairly against Trump. He said the public should know whether Attorney General Merrick Garland signed off on the request.
The fight over the gag order was preceded by a lengthy and detailed argument over whether Garland had misused the Justice Department’s special counsel regulation to pursue Trump.
Similar arguments from other defendants who have been charged by special counsels have not succeeded.
Cannon showed a particular interest in how much special counsel appointments cost the government, at one point calling it a “significant” amount of money, even though the totals represent a drop in the bucket of Justice Department spending.
The most expensive special counsel investigation in recent years, conducted by Robert S. Mueller III and focused on alleged Russian interference in the 2016 election, cost about $32 million over several years. The Justice Department’s annual budget is more than $35 billion — meaning that Mueller’s work cost significantly less than 0.1 percent of the agency’s spending.
Bove argued that the Justice Department had fundamentally erred by running a stand-alone special counsel investigation without sufficient oversight.
“Our position is that more oversight from the Congress is required … for the extraordinary things going on” like the gag order request, Bove said. “Who authorized that? Was it the attorney general?”
In a separate hearing Friday on the constitutionality of the special counsel appointment, Bove argued that Smith had too much independence and said his appointment should have been approved by the Senate.
Cannon has shown an eagerness to delve into a host of legal issues raised by the defense, including some that are more commonly raised on appeal in other cases. Before becoming a judge, Cannon was a prosecutor who worked on appellate issues, and long stretches of Monday’s hearing sounded more like an argument before an appeals court than a trial court.
In response, the government’s arguments were made Monday morning by a lawyer from the special counsel’s office with expertise in appellate issues, James Pearce.
Pearce said the defense claims that Smith’s office was not properly funded by the government were specious and lacking in any support in case law. Even if the judge found some flaw in the process, he said, there would be no meaningful remedy, because the Justice Department could easily draw the necessary funds from a different pool of agency money.
At one point, Cannon cautioned Pearce not to interrupt her while she was speaking, but the overall tenor of the morning hearing was polite, if somewhat tedious. Cannon did not immediately rule on the defense argument for dismissal of the indictment.
This is a developing story. It will be updated.
