The judge overseeing Donald Trump’s classified documents trial could be considering throwing out the case before she has to decide when the former president can appear in front of a jury, a legal expert has suggested.
Lisa Rubin, a former lawyer and legal analyst for MSNBC, was commenting about the “frightening” prospect ahead of Judge Aileen Cannon hearing arguments regarding two motions filed by Trump’s legal team to dismiss the federal case led by Special Counsel Jack Smith.
Trump has pleaded not guilty to 40 charges over allegations he illegally retained sensitive materials when he left the White House in January 2021 and then obstructed the federal attempts to retrieve them.
The arguments Cannon will hear during Thursday’s meeting relate to the claim that the Presidential Records Act [PRA] allowed Trump to keep documents after he left office, as they were his personal property. Trump’s legal team will also argue that charges Trump faces under the Espionage Act are “unconstitutionally vague” when applied to the former president.
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Speaking to MSNBC, Rubin noted that Cannon will hear the motion to dismiss despite not officially confirming when the classified documents trial will start. The proceedings are currently scheduled for May 20, but Cannon is widely expected to push the start date back.
“A couple weeks ago, Judge Cannon had a hearing where she took arguments from both sides, when the case should be tried,” Rubin said.
“She has yet to issue a scheduling order setting a trial date. In the meantime, she’s hearing arguments today on two motions to dismiss. I’m not a betting person, probably would make a miserable one, but the fact she set oral arguments on two motions to dismiss makes me think maybe she thinks she can get rid of this case without setting a trial date.
“That is frightening, given the gravity of the charges here and the evidence that supports those charges,” Rubin said.
Cannon, who was nominated to the bench by Trump, has long faced criticism for her rulings that have arguably benefited the former president in the classified documents case.
Elsewhere Joyce Vance, a former federal prosecutor, suggested Trump’s arguments why the classified documents case should be thrown out are “barely better than frivolous.”
“Trump insists he designated the documents as personal records under the PRA so his possession of them was authorized and he can’t be prosecuted for it. But he’s never been able to explain how the PRA trumps laws about handling classified and national defense info. It doesn’t,” Vance posted on X, formerly Twitter.
“Even if, by some stretch of the imagination, a president can hang onto classified information by claiming its personal records, Trump’s still obstructed justice according to multiple first-hand witnesses.
“If this was any other judge, I’d be telling you there was a 105% chance these motions would be dismissed. But with Judge Cannon, we just have to wait and see how she’ll rule,” Vance added.
The Presidential Records Act, introduced in 1978 in the wake of the Richard Nixon Watergate scandal, requires every presidential document be sent to the National Archives and Records Administration (NARA) when the president leaves office.
If any outgoing president wishes to have their official documents publicly presented, such as in a library, they must seek permission from NARA and the documents must remain under NARA custody.
The agency said last June that Trump did not seek permission to retain documents prior to leaving office in January 2021. Trump also kept the classified and top secret materials at his personal property of Mar-a-Lago, not in custody of the NARA.
It is unclear which way Cannon will rule in the motion to dismiss, or when she will decide when the trial will take place should it still go ahead.
Trump, the presumptive 2024 Republican presidential nominee, argued the trial should not take place until 2025 due to his campaign schedule. Trump’s lawyers also suggested a potential August start date, as required by a court order. Smith’s team told Cannon that the trial should take place in July.
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Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.