Special counsel Jack Smith on Thursday asked the judge in charge of the Mar-a-Lago documents case to keep former president and convicted felon Donald Trump from filing any additional motions about the government’s requested gag order for the lead defendant.
In a matter of hours, however, U.S. District Judge Aileen Cannon reversed course on one of her earlier rulings and allowed the parties to each submit one, final, 10-page supplemental brief on the matter.
Smith, in his Thursday morning filing, sought to vindicate the court’s Monday, June 24, ruling in which Cannon said the evidentiary record on the gag order issue would be closed by Wednesday, June 26.
“No additional briefing will be permitted,” Cannon declared earlier this week in an order before reversing herself by Thursday afternoon.
In between the stark volte-face, a few things happened.
Both the defense and the government, in that order, filed a series of additional evidentiary attachments and exhibits. Each filing was stylized as a “Notice of Filing” in line with the aforementioned written court order — and Cannon’s directions given to each side verbally, in open court, during a Monday afternoon hearing on the gag order.
In each filing, both the government and Trump’s defense filed 11 separate attachments and exhibits to plead their case for and against.
But Trump’s filing also contained an embedded secondary motion — seeking leave, and a lot of additional time, to file another motion.
“President Trump respectfully requests leave to file a response to the expected Notice to be filed tonight by the Special Counsel’s Office,” Trump’s attorneys wrote on Wednesday. “The defense conferred with the Special Counsel’s Office today and understands that the Special Counsel intends to file numerous exhibits not previously relied upon in seeking its Motion for Modification of Conditions of Release. President Trump respectfully requests two weeks to file a response to the newly submitted evidence.”
Smith protested this request, arguing Cannon’s earlier shuttering of the briefs in her Monday order was “detailed and unambiguous.”
Moreover, the special counsel argued, the order was seemingly based on a local procedural rule in effect in Florida’s Southern District.
Smith’s team argued, at length:
The Court’s order issued after the hearing is clear and unambiguous — no additional briefing. And the Court’s minute order expressly stated that the additional filings were to be submitted as a “Notice of Filing.” When a party submits a notice of supplemental authority, Local Rule 7.8 states: “No replies are permitted.” If the only substantive notice under the local rules does not permit replies, certainly any other type of notice the parties file would not allow for a reply.
Despite the plain and unambiguous text of the Court’s order and the analogous restriction under Local Rule 7.8, Trump requests leave to file a response to the Government’s Notice. The Government understands that the Court meant what it said in its June 24, 2024 minute order: “No additional briefing will be permitted.” Trump’s request should be denied.
The defense did not get a chance to respond to the government’s complaints. By late Thursday, the court effectively granted Trump the majority of his request — but nixing the two-week timeline in favor of a July 5, due date. The order also effectively nixes the government’s request — but does not specifically address any of Smith’s concerns.
Cannon, for her part, said the shift was “[i]n light of the extensive, newly submitted materials filed by” the government and the defense “in support of and/or in opposition to” the gag order dispute.
“The evidentiary record on the Motion is closed,” the Thursday order notes — before leaving a small toe space open in the event she changes her mind again. “Absent leave of Court, no further exhibits shall be attached to the authorized final supplemental briefs.”