Judge Aileen Cannon (Senate Judiciary Committee via AP), Donald Trump visits Cedar Rapids, Iowa, in July 2023 (AP Photo/Charlie Neibergall, File)
Weeks after a March 14 motion hearing in federal court, the judge handling the Mar-a-Lago case ruled against one of former President Donald Trump’s bids to dismiss his Espionage Act charges.
It took a while, but U.S. District Judge Aileen Cannon has issued a decision on the second argued motion, where the defense insisted the indictment should be tossed due to the Presidential Records Act (PRA). As with Trump’s motion to dismiss on grounds of Espionage Act “unconstitutional vagueness,” Cannon denied the PRA-focused motion to dismiss.
In an order issued Thursday, the judge found that the first 32 counts of the indictment align with the “essential elements” of the charge making it illegal to retain records pertaining to the national defense without authorization.
“Those same counts make no reference to the Presidential Records Act, nor do they rely on that statute for purposes of stating an offense,” she wrote.
The Trump-appointed judge also found that with regard to Smith’s demand for the finalization of jury instructions before the presentation of evidence, defense strategy or a charging conference, that was both “unprecedented and unjust.”
Cannon’s order that both sides provide preliminary proposed jury instructions should not be understood as a “final definition” on any element in the case, including Trump’s defense, she wrote.
“Nor should it be interpreted as anything other than what it was: a genuine attempt, in the context of the upcoming trial, to better understand the parties’ competing positions and the questions to be submitted to the jury in this complex case of first impression,” Cannon added.
As Law&Crime reported on what took place at the shorter-than-anticipated hearing weeks ago, the judge appeared to tip her hand that the “unconstitutional vagueness” arguments would not be a legitimate basis for dismissal then and there, but Cannon’s decision to dismiss without prejudice — reasoning that the “unconstitutional vagueness” arguments could be raised “as appropriate in connection with jury-instruction briefing and/or other appropriate motions — played a role in a series of searing criticisms that followed.
Cannon, whether by not definitively resolving Trump’s Espionage Act “unconstitutional vagueness” arguments or by ordering up proposed jury instructions under the assumption that the Presidential Records Act allowed Trump to decide that national defense documents were personal items, has legal commentators thinking that she has no intention of bringing the case to trial before the 2024 election.
At the hearing, Cannon indicated it was “difficult to see” how Trump’s claim to have “virtually unreviewable Article II executive authority to designate” the classified documents at issue “as personal” could lead to the dismissal of the indictment.
When defense attorney Todd Blanche reportedly countered by saying that presidents since George Washington have at their “own discretion” taken “materials out of the White House,” Cannon did not appear impressed by the drive-by appeal to the first president of the United States and his successors.
“It’s difficult to see how this gets you to the dismissal of an indictment,” Cannon tellingly replied. The judge was also quick to acknowledge prosecutor Jay Bratt’s point that there is difference between having the clearance to view sensitive documents and permission to keep them in a “basement”-like setting, or like a bathroom or shower.
“Certainly, certainly,” Cannon said.
The Special Counsel’s Office, which had repeatedly said the PRA does not “exempt” Trump from prosecution nor “entitle” him to unilaterally decide national defense information belongs to him, emphasized in court that the defendant had no power to claim, by “fiat,” that the nation’s secrets are his personal records.
Though Cannon conspicuously avoided mention of when the Mar-a-Lago trial may begin (and nothing has changed on that front in the days since), she did end up adjourning the hearing short of the “full day” that had been blocked off for argument. Then, after promising to “promptly” issue a ruling, she denied — without prejudice — Trump’s motion to dismiss on grounds of “unconstitutional vagueness.”
In the denial, just two pages in length, Cannon wrote that while the Trump motion to dismiss raised “various arguments warranting serious consideration,” now was not the time to raise them.
“[T]he Court ultimately determines, following lengthy oral argument, that resolution of the overall question presented depends too greatly on contested instructional questions about still-fluctuating definitions of statutory terms/phrases as charged, along with at least some disputed factual issues as raised in the Motion,” the judge wrote, reasoning that the defense could repeat their arguments “as appropriate in connection with jury-instruction briefing and/or other appropriate motions” on a later date.
Beyond the PRA and “unconstitutional vagueness” motions to dismiss, there are several pending motions that Cannon has yet to address. Those motions include: Trump’s motion to dismiss based on selective and vindictive prosecution; a motion to dismiss based on asserted presidential immunity; a motion to dismiss on grounds that Jack Smith was unlawfully appointed and funded. While largely ruling in Jack Smith’s favor on March 22, on classified discovery, the judge pointed out that the special counsel’s motion for reconsideration remains up in the air, too.
The Smith motion, regarding the possible outing of government witnesses through discovery, maintained that it would be a “manifest injustice” traceable to Cannon’s “clear error” if government witnesses are named.
Brandi Buchman and Colin Kalmbacher contributed to this report.
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