Legal experts expressed concerns over the fate of former President Donald Trump’s classified documents case after a hearing before Trump-appointed U.S. District Judge Aileen Cannon last week.
Cannon heard arguments on two Trump motions to dismiss the case. She later issued an order dismissing the former president’s motion that the case should be tossed due to constitutional vagueness. Cannon wrote that some of Trump’s arguments warrant “serious consideration” but dismissed the motion without prejudice, which means Trump’s lawyers could potentially introduce it again at trial — at which point special counsel Jack Smith would not be able to appeal it.
"Trump moved here to dismiss the indictment on the grounds that certain phrases like unauthorized possession and relating to national defense were vague, and then Judge Cannon took the bait and said these definitions are still fluctuating, and she can't decide the motion now, and she kicked the can down the road," former federal prosecutor Kristy Greenberg told MSNBC on Sunday, adding that "there's nothing vague about these terms."
Greenberg said that the unauthorized possession of national defense information statute is “well-established in the law and these claims have been rejected previously.”
"He understood, and Judge Cannon by not making the decision and kicking the can down the road means he can appeal it, and perhaps double jeopardy would apply if he makes the motion later, and the jury is empaneled, and he has no ability to appeal later,” she added. “It's a bad decision for the special counsel's office, and one we can expect to have frustration for the people who want to move this along. She clearly does not want to do so."
While the hearing was intended to focus on Trump’s motions to dismiss the case on unconstitutional vagueness grounds as well as another that argued he was allowed to take the documents under the Presidential Records Act, Cannon also asked questions at Thursday’s hearing about a third motion alleging “selective or vindictive prosecution,” according to Lawfare senior editor Roger Parloff.
Parloff noted that Cannon appears to be treating that motion “very seriously” even though it is “breathtakingly baseless.”
Trump’s lawyers argued that Trump is being treated unfairly by the Justice Department compared to other former presidents and vice presidents who took classified materials home. Smith in a filing rejected the argument, noting that Trump allegedly also repeatedly sought to “thwart” the lawful return of the documents and “engaged in a multi-faceted scheme of deception and obstruction.”
Parloff predicted that it is unlikely Cannon would dismiss the case based on Trump’s argument “but she might grant Trump additional discovery & a public hearing to explore those questions, which would itself be virtually unprecedented.”
“She could also write an order decrying purported disparities in treatment beneficial for his campaign,” he added.
Cannon has yet to rule on Trump’s motion seeking to dismiss the case under the Presidential Records Act despite expressing skepticism about it during the hearing.
“If Judge Cannon can’t—or won’t—categorically deny this frivolous motion to dismiss the claims against Trump, what is she going to do with other motions that are still pending in the case, and the avalanche of future motions sure to come?” attorney Philip Rotner questioned in The Bulwark.
“Federal judges control everything that takes place in their courtrooms, from motions to dismiss to evidentiary rulings to jury instructions,” Rotner wrote. “They can influence jurors through nothing more than body language and the roll of an eye. There are a hundred ways a federal judge can sabotage a case. In this case, the judge could easily pull enough levers to delay Trump’s trial until after the 2024 presidential election, at which time he will be able to kill it himself if he is elected. And even if Trump loses the election, there’s absolutely no reason to believe that Judge Cannon won’t find more levers to pull to deliver a coup de grâce.”
Rotner warned that it is time for Smith and his team to “read the writing on the wall: Judge Cannon is going to kill your case.”
“Smith should move now to get Judge Cannon thrown off the case,” he added. “Whatever the risk, it has to be taken, and fast. Otherwise, Smith might as well fold his hand now.”
