Relations between Judge Aileen Cannon and Special Counsel Jack Smith are at a new nadir after her indignant refusal of his request to amend the terms of President Trump’s release to limit his ability to speak about law enforcement.

Judge Cannon called the special counsel’s filing “wholly lacking in substance and professional courtesy” because it was deficient in “meaningful conferral.” The judge’s thunderous denunciation of Mr. Smith’s professional comportment could amount to a crisis to be resolved by the 11th Appeals Circuit.

The jurist appears to be incensed that Mr. Smith did not parley with Mr. Trump’s attorneys before the request that the 45th president’s First Amendment rights be abridged. She mandates that “any future, non-emergency motion brought in this case … shall not be filed absent meaningful, timely, and professional courtesy.”

Judge Cannon denied Mr. Smith’s motion without prejudice, meaning that it can be refiled. She did warn, though, that “failure to comply with these requirements may result in sanctions.” She appears especially aggravated that the special counsel failed to confer with Mr. Trump’s attorneys on something as significant as a prior restraint on speech, which implicates “substantive and/or Constitutional questions.”

Judge Cannon appears to have been convinced by Mr. Trump’s argument that the special counsel’s office engaged in “unprofessional conduct” by refusing to confer over the holiday weekend. Mr. Trump’s attorney, Todd Blanche, described himself in an email to one of Mr. Smith’s deputies, Jay Bratt, as “actually speechless” with respect to the government’s refusal to engage in a Memorial Day parley.

Email correspondence offered into evidence by Mr. Trump’s attorneys disclose a message to Mr. Bratt from Mr. Blanche noting that a “5:30 p.m. email on the Friday before Memorial Day is not meeting and conferring in any sense of the word, and certainly not as we have been ordered to do by Local Rule and Judge Cannon.” Mr. Bratt’s position was that conferral was fruitless given Mr. Trump’s inevitable opposition to the motion.     

Conflict over conferral began with the request by Mr. Smith that Judge Cannon prohibit Mr. Trump from making “statements that pose a significant, imminent, and foreseeable danger to law enforcement agents.” That came after repeated claims from Mr. Trump that the FBI agents who searched Mar-a-Lago were authorized to kill him and his family. 

Citing the recently disclosed wording of the search warrant, which authorized the use of deadly force, Mr. Trump declared that those agents were “AUTHORIZED TO SHOOT ME” and were “just itching to do the unthinkable.” He reckons that they were “locked & loaded ready to take me out & put my family in danger.” Mr. Smith insists that the search was undertaken with “extraordinary care” and that Mr. Trump’s rhetoric poses “unjustified and unacceptable risks.”

Mr. Smith did not want Judge Cannon to issue a gag order, as the more prosecution-friendly judges, Tanya Chutkan of the District of Columbia and Juan Merchan of Manhattan, have done. Instead, he asked that she amend the terms by which Mr. Trump is a free man. The special counsel now must weigh whether it will be fruitful to refile his request or save it for the appeals court.  

Mr. Trump’s attorneys call that request an “extraordinary, unprecedented, and unconstitutional censorship application” that “unjustly targets President Trump’s campaign speech while he is the leading candidate for the presidency.” The 45th president also contends that the prosecutor’s request “treads new — extremely problematic — ground as a requested prior restraint that is different in kind from the unconstitutional gag orders” already in place.

The former president’s rejoinder to Mr. Smith calls his office the “Thought Police” and argues that “gag orders reflect an extremely serious threat to our constitutional traditions — especially when they are applied to political candidates.” On top of that, Mr. Trump argues the special counsel’s motion “should not have been filed on Friday night.”

Mr. Smith now has fateful decisions to make. He can let the request for an amended conditions of release go, though that would likely embolden Mr. Trump to persist in the rhetoric that the special counsel represents an imminent danger to law enforcement. He could refile the motion after conferring with Mr. Trump’s team, though Judge Cannon appears unlikely to grant such a drastic limitation on Mr. Trump’s ability to speak. 

The most dramatic move of all would be to file an appeal for mandamus with the 11th Circuit, further escalating hostilities with Judge Cannon. The Department of Justice, in its own manual of practice, reckons that “Mandamus is an extraordinary remedy, which should only be used in exceptional circumstances of peculiar emergency or public importance.” 

The 11th Circuit, though, could demur and just instruct Mr. Smith to exhaust his case before Judge Cannon. A motion to recuse, though it would first be heard by Judge Cannon herself, could eventually make its way before the higher court — and, possibly, eventually the highest one.