Jack Smith Motion to Modify Trump's Bail Conditions

In response to Trump's ridiculous claims that the FBI and Joe Biden tried to assassinate him, Jack Smith has filed a motion to shut him up.

Naturally, just as Andy McCabe and I had finished recording this week’s episode of the Jack podcast, Jack Smith makes a late night filing responding to Trump’s outlandish and false claims that the FBI intended to use DEADLY FORCE against Trump during their lawful execution of the search warrant at Mar-a-Lago in August of 2022.

While I try to figure out a way to jam this significant breaking news into the episode that already went to the editors, I’ll break it down for you here. You’ll notice many of the things Andy and I discussed on the new episode that will be released Sunday, are covered in this filing. So let’s dive in. Excerpts from the actual filings will be in italics.

Jack Smith opens with The Government moves to modify defendant Donald J. Trump’s conditions of release, to make clear that he may not make statements that pose a significant, imminent, and foreseeable danger to law enforcement agents participating in the investigation and prosecution of this case.

He then informs the court that he met and conferred with Trump’s lawyers, who oppose his motion, and also said they object to the timing - seeing as it’s a holiday weekend and as we all know, Trump observes Memorial Day because he really cares about all those suckers and losers we’ve lost in battle. I digress.

Jack Smith goes on to say Those statements create a grossly misleading impression about the intentions and conduct of federal law enforcement agents—falsely suggesting that they were complicit in a plot to assassinate him—and expose those agents, some of whom will be witnesses at trial, to the risk of threats, violence, and harassment. The Court has an “independent obligation to protect the integrity of this judicial proceeding,” ECF No. 101, and should take steps immediately to halt this dangerous campaign to smear law enforcement.

I don’t have a lot of faith in Judge Cannon here, but Jack Smith is - per ushe - correct on the law. He then continues with every point made by my friends in the FBI over the past couple of days.

As Trump is well aware, the FBI took extraordinary care to execute the search warrant unobtrusively and without needless confrontation: they scheduled the search of Mar-a-Lago for a time when he and his family would be away; they planned to coordinate with Trump’s attorney, Secret Service agents, and Mar-a-Lago staff before and during the execution of the warrant; and they planned for contingencies—which, in fact, never came to pass—about with whom to communicate if Trump were to arrive on the scene.

As part of this planning, the FBI used a form that contains standard and unobjectionable language setting out the Department of Justice’s use-of-force policy, which prohibits the use of deadly force except “when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or to another person.” The inclusion of that policy is routine practice to restrict the use of force, and it is attached to countless warrants across the country. (The emphasis is mine.)

Trump, however, has distorted the standard inclusion of the policy limiting the use of deadly force by mischaracterizing it as a claim that the FBI “WAS AUTHORIZED TO SHOOT ME,” was “just itching to do the unthinkable,” and was “locked & loaded ready to take me out & put my family in danger.” 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. Those risks have the potential to undermine the integrity of the proceedings as well as jeopardize the safety of law enforcement.

A condition of release that prohibits the defendant from making statements posing a significant, imminent, and foreseeable danger to law enforcement agents participating in the investigation and prosecution of this case is warranted and necessary here. 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.

So far, all of this is pretty straightforward and doesn’t need much explanation, however, I can tell you that Jack Smith MEANS BUSINESS here, and appears to share the anger I’ve personally heard expressed by my friends and co-hosts that are former FBI agents (wait until you hear the Cleanup on Aisle 45 bonus episode this weekend.)

And here’s the kicker: the policy that Trump is citing as evidence that the government intended to use deadly force states the following: “[l]aw enforcement officers of the Department of Justice may use deadly force only when necessary, that is, when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or to another person.”

I highlight “only” because Trump’s lawyers misquoted that, removing the word “only” in their motion to dismiss - and his lawyers are former DoJ employees. So that’s just completely unacceptable, and IMHO, sanctionable.

Pete and I, as well and Andy and I discussed that omission, and Jack Smith raises it in this motion:

On February 22, 2024, Trump filed under seal a motion to suppress evidence obtained through the search of Mar-a-Lago. In setting forth what he described as the relevant facts, Trump stated that the Operations Form “contained a ‘Policy Statement’ regarding ‘Use Of Deadly Force,’ which stated, for example, ‘Law enforcement officers of the Department of Justice may use deadly force when necessary [sic] . . . .’” Although Trump included the warrant and Operations Form as exhibits to his motion, the motion misquoted the Operations Form by omitting the crucial word “only” before “when necessary,” without any ellipsis reflecting the omission.

Predictably and as he certainly intended, others have amplified Trump’s misleading statements, falsely characterizing the inclusion of the entirely standard useof-force policy as an effort to “assassinate” Trump.

Trump, however, has grossly distorted these standard practices by mischaracterizing them as a plan to kill him, his family, and U.S. Secret Service agents. Those deceptive and inflammatory assertions irresponsibly put a target on the backs of the FBI agents involved in this case, as Trump well knows.

And Jack Smith concludes much the same as he opened: The law enforcement agents participating in this case conducted the search in an appropriate and professional manner, subject to the Department of Justice’s standard use-of-force policy. Trump’s repeated mischaracterization of these facts in widely distributed messages as an attempt to kill him, his family, and Secret Service agents has endangered law enforcement officers involved in the investigation and prosecution of this case and threatened the integrity of these proceedings. A restriction prohibiting future similar statements does not restrict legitimate speech. Trump’s conditions of release should therefore be modified to prohibit similar communications going forward.

I’m wondering if Cannon denies this motion, if it will be enough to head to the 11th circuit and ask them to order her to modify the conditions of release. We shall see!

You can read the full filing here.

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~AG