The judge overseeing Donald Trump’s classified documents trial may be benefiting the former president by not yet ruling on a motion-to-dismiss argument, a legal expert has suggested.
Joyce Vance, a former federal prosecutor and legal analyst, was discussing how Judge Aileen Cannon has not yet ruled on whether the federal case against Trump can be thrown out after his legal team filed a motion saying the Presidential Records Act allows Trump to designate the sensitive materials he took after leaving the White House as his own personal property.
Cannon did reject another one of Trump’s motions to dismiss on March 14, which claimed that the charges special counsel Jack Smith brought forward related to the Espionage Act were “unconstitutionally vague” when applied to the former president. Though she rejected it, Cannon said that any complaints about the act could be raised again in the future in “connection with jury-instruction briefing.”
Writing in her Civil Discourse blog, Vance, who has often been critical of Trump, said that it was “very concerning” that Cannon still had not thrown out on the disputed claims put forward by Trump in the Presidential Records Act motion, and instead appeared to be setting it up for the arguments to also be discussed in front of a jury.
U.S. District Court for the Southern District of Florida
“When she discussed the motion during the hearing it sounded like she was inclined to dismiss it, but not because it’s meritless,” Vance wrote on Sunday.
“Instead, she seemed to think that this motion, like the vagueness one, was ‘premature’ and the outcome would depend on disputed facts that would be hashed out during the trial.
“Because this is so facially wrong—our nation’s secrets, generated by the intelligence community, can never be Trump’s ‘personal records’—the fact that she’s pushing matters off to be decided during trial after a jury is empaneled and double jeopardy has attached is very concerning,” Vance added.
If both the arguments put forward in the motions are to be brought in the trial and accepted by the jury, Smith’s office would then not be able to appeal to decision due to the Fifth Amendment’s double jeopardy clause, which prevents defendants from being retried on the same charges they were acquitted over.
Newsweek has contacted Trump’s legal team for comment.
Neal Katyal, a lawyer and former acting U.S. solicitor general during the Obama administration, suggested that while Cannon, a Trump appointee, could end up rejecting the motions-to-dismiss arguments, the fact she held a day-long hearing to discuss their merit in the first place is ultimately helping Trump in his hopes to delay the federal trial.
Speaking to MSNBC on March 14, the day of the hearing, Katyal said Cannon’s decision in favor of Smith’s office was only a partial victory, similar to what may occur with the Supreme Court’s ruling on whether Trump can cite absolute immunity to dismiss his federal election obstruction case.
“There is no chance that Trump is going to win and that the court is going to say he has absolute immunity. But what the Supreme Court did there is delay his trial for January 6 charges potentially to after the election,” Katyal said,
“And the same thing I fear is happening with Judge Cannon, she keeps kicking the can down the road. The fact that she had a daylong hearing today on these two bogus issues tells you everything you need to know. The only thing that Donald Trump’s arguments warrant are an eye roll and a swift denial.”
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 trial is currently scheduled for May 20, but Cannon is expected to push back the start of proceedings.
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Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.