Donald Trump’s lawyers are preparing to redirect their focus on the charges that the former president illegally retained classified documents at his Mar-a-Lago resort in Florida, moving on after Trump was found guilty of 34 felonies in his New York criminal trial last month.
The documents case now stands with singular importance for Trump, as it is the only case with ongoing proceedings. The other two cases where Trump is a defendant – the 2020 election interference cases in Washington and Georgia – are now indefinitely delayed with appeals.
That means Trump’s lawyers are principally occupied with only the documents case as they intensify efforts to have the presiding US district court judge Aileen Cannon dismiss the indictment or, alternatively, dramatically undercut the evidence prosecutors can present.
The documents case is also bogged down with delays after the Trump lawyers filed motion after motion and sought extension after extension from Cannon, a Trump appointee who has invariably been skeptical of prosecutors and has a reluctance to rule on even minor issues, allowing a logjam to build.
The case remains alive, for now, but the delays have played into the hands of Trump, whose overarching legal strategy has been to push any trials until after the 2024 election, in the hopes that he will be re-elected and can then appoint a loyalist as attorney general who would drop the charges.
But Trump’s lawyers in the coming weeks are preparing to try to capitalize on their freer schedule and the judge’s disposition, and seek to expunge as much of the evidence that prosecutors have amassed as possible.
The lawyers got an early indication of how Cannon might rule on Trump’s growing tally of motions seeking to throw out the case when, on Monday, she struck from Trump’s indictment a paragraph about an episode in which Trump waved around a classified document at his Bedminster golf club.
Cannon wrote in a 14-page opinion that she was denying Trump’s request to toss the case completely since the arguments he raised were defense arguments he needed to raise at trial, but granted his request to strike the paragraph on the grounds it was unfairly prejudicial.
At a hearing last month in federal district court in Fort Pierce, the lead trial prosecutor, Jay Bratt, told the judge they had included the passage in the indictment in order to show Trump’s proclivity for recklessly mishandling and retaining classified documents.
The passage in question – paragraph 36 – described Trump in 2021 waving around a classified map of Afghanistan while criticizing the US withdrawal to his now 2024 presidential campaign chief, Susie Wiles, according to sources familiar with the matter.
Bratt told the judge the evidence was admissible in the indictment under the 404(b) rule of federal criminal procedure, which permits prosecutors to tell a jury about “bad acts” committed by a defendant that were not part of the charges but indicated a pattern of behavior.
The invocation of the rule by Bratt was itself unusual, because the 404(b) rule is not generally considered a rebuttal to a complaint about the inclusion of supposedly irrelevant evidence. But Cannon’s decision to admonish prosecutors suggested her skepticism towards them.
At one point in a set of forthcoming hearings, Trump’s lawyers are expected to continue that line of reasoning in a potentially momentous attempt to prevent prosecutors from using incriminating statements that Trump’s then-lawyer Evan Corcoran recalled in transcribed notes.
The notes, the contents of which were first reported by the Guardian last year before the most damaging portions were also included in the indictment, describe how Trump asked Corcoran whether he needed to comply with a grand jury subpoena seeking the return of all classified documents.
Trump’s subsequent failure to comply with that subpoena – hiding boxes of classified documents from Corcoran, who had been tasked with retrieving all classified documents as the subpoena commanded – is widely seen as the moment that triggered the criminal investigation and search of Mar-a-Lago.
The notes were turned over to prosecutors last year after the chief judge in the federal district court in Washington used the so-called crime-fraud exception to attorney-client privilege. The exception allows prosecutors to see confidential communications between a defendant and an attorney if the defendant uses legal advice to further a crime.
Trump has argued that the crime-fraud exception was improperly applied, and that will be the subject of a hearing later this month. The result of that hearing could be consequential, depending on whether Cannon decides to expunge that evidence, too, dealing a blow to the obstruction charges.
