Red states ask court to stop Jack Smith's gag order against Trump in Florida documents case

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Judge rejects Jack Smith's request for gag order in Trump classified documents case

Fox News contributor Leo Terrell and former Reps. Lee Zeldin and Doug Collins react to the breaking news on ‘The Faulkner Focus.’

FIRST ON FOX: A group of 24 Republican state attorneys general have filed an amicus brief in former President Trump's classified documents case, asking a Florida court not to grant special counsel Jack Smith's gag order request, calling it "presumptively unconstitutional."

"Free and fair elections in the United States depend on candidates’ ability to speak about important issues of the day. Attempts to stop a candidate from speaking out harm more than just the candidate. They also hurt the voters, who are denied access to crucial information, and the States, which are responsible for managing elections," the amicus brief filed Monday in the Southern District of Florida stated. 

"And when agents of one candidate seek a court order to muzzle discussion on matters relating to important electoral issues, that restraint raises even more fundamental First Amendment concerns," the brief said. 

Led by Iowa Attorney General Brenna Bird, the group of top state prosecutors argue that "[e]ach branch of government, even the judiciary, should be cautious about abridging core political speech—especially core political speech relating to a presidential election. 

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Former President Trump holds a rally in the historically Democratic South Bronx on May 23, 2024 in New York City. (Spencer Platt/Getty Images)

"Unfortunately, the special prosecutor’s request here does not reflect that caution," the brief states. 

Last month, Smith's team filed a motion to U.S. District Judge Aileen M. Cannon, who is presiding over the classified documents case, requesting that she prohibit Trump from making statements that "pose a significant, imminent, and foreseeable danger to law enforcement agents participating in the investigation and prosecution of this case." Trump claimed in a campaign appeal that FBI agents were "locked & loaded ready to take me out & put my family in danger."

Prosecutors said Trump's "grossly misleading" claims cited a standard FBI form that details limiting the use of force to emergency situations. The same form was used when federal agents searched for documents at President Biden's home.

The AGs in their brief argued that Smith's request asked the court "to curtail that right by ordering a prior restraint on President Trump’s constitutionally protected speech. Such an order is presumptively unconstitutional." 

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Former President Trump's Mar-a-Lago resort in Florida was searched by the FBI in 2022. (Getty Images)

"If granted, this request would prevent the presumptive Republican nominee for President of the United States from speaking out against ‘the prosecution and the criminal trial process that seek to take away his liberty,’" they wrote.

"That prosecution, of course, is led by a Department that President Trump’s political opponent controls."

"Politics has no place in a criminal prosecution," Bird said in a statement to Fox News Digital. "Everyone has the right to free speech, including President Trump. This unconstitutional gag order would prevent President Trump from defending himself while he is on the ballot and deny Americans their right to hear from both candidates ahead of an election." 

Bird was joined by attorneys general of Florida, West Virginia, Alabama, Alaska, Arkansas, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah and Wyoming.

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Special counsel Jack Smith arrives to give remarks on a recently unsealed indictment including four felony counts against former President Trump on Aug. 1, 2023 in Washington, D.C. (Drew Angerer/Getty Images)

"Once again, we are witnessing a prosecutor seek to keep the presumptive Republican nominee for President from speaking in the midst of an election," Florida Attorney General Ashley Moody. "The First Amendment, at its core, is designed to protect political speech, and I along with my colleagues will not stand idly by and watch the Biden administration trample the free speech of a Florida citizen."

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The AGs argued in their brief that "[t]o be sure, there are times when a gag order, even of a political candidate, may be justified." 

"But this Court need not find the distant boundary of when such an order is justified because the facts here do not justify such an extraordinary restraint," they said. 

Fox News' Chris Pandolfo contributed to this report.