Prosecutors would instantly lose their classified documents case against Trump if a trial judge finds the charges are too vague, a former federal prosecutor has said.
Writing in her legal blog Civil Discourse on Friday, Joyce Vance said that the government would have no right to appeal in such a “nightmare scenario” because a defendant cannot be retried after a jury has been sworn in.
Any attempt to appeal would be dismissed under the double jeopardy rule, which prevents prosecutors from trying the same person again for the same charges, Vance noted.
Vance is a liberal-leaning legal author who has been a frequent critic of Trump.
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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 from his Mar-a-Lago estate in Florida.
Newsweek sought email comment from Trump’s attorney on Friday. Trump is the presumptive Republican candidate in the 2024 presidential election.
On Thursday, Judge Aileen Cannon dismissed Trump’s application to have the charges dismissed on vagueness grounds.
However, Cannon, a Trump appointee, wrote that she was making her decision “without prejudice”, meaning that Trump’s lawyers can raise the vagueness issue again at a later date.
She also noted that the vagueness dispute hinges on a disagreement about factual issues in the case—opening the door for Trump’s lawyers to later show their version of the facts are correct.
“The judge dismissed the vagueness argument—but just for today,” Vance wrote. “She did it ‘without prejudice’ which means that Trump’s lawyers could raise the argument again later in the case. In fact, the judge seemed to do just that in her order, essentially inviting the defense to raise the argument again at trial,” Vance added.
Cannon ruled that the vagueness motion turns at least in part on ‘disputed factual issues’.
“That’s significant because those disputed issues get aired at trial when the evidence is presented to the jury,” Vance wrote.
She noted that such a decision at trial would sink the case against Trump.
“That’s because once a jury has been empaneled, double jeopardy ‘attaches’ and prevents the government from retrying the defendant on the same charges if he’s acquitted, which is what would happen if the Judge granted a motion to dismiss at that point and before a jury rendered a guilty verdict. That’s the nightmare scenario here,” Vance wrote.
Speaking to MSNBC on Thursday, former FBI General Counsel Andrew Weissmann said that Cannon’s decision was the “worst possible outcome” for Special Counsel Jack’s Smith team.
“If the judge had simply said, ‘I agree with Donald Trump, and I find that this is vague and I’m dismissing it,’ the government could have appealed it to the Court of Appeals for the 11th Circuit, as they have done twice before and won twice before,” Weissmann said.
“But she also did not want to rule in favor of the government. So what she did is said ‘why don’t you bring this up later? I think there’s some real issues here.’
Uncommon Knowledge
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Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.