Donald Trump, photographed by Mike Stewart, and U.S. District Judge Aileen Cannon, along with special counsel Jack Smith, were the key figures in this case.
During the motion hearing on Thursday regarding former President Donald Trump’s attempt to dismiss his Espionage Act indictment in the Mar-a-Lago case, the judge’s leanings were subtly revealed. Court watchers, both prior to and during the proceeding, were unanimous in their belief that the defense’s “exotic” and unlikely arguments should be dismissed.
U.S. District Judge Aileen Cannon took center stage as everyone watched with anticipation. The first to speak was Trump attorney Emil Bove, who argued that the indictment should be dismissed due to its “unconstitutional vagueness” when applied to the defendant.
According to Politico, Cannon questioned the Special Counsel’s Office about instances of other senior executive branch officials being prosecuted under the Espionage Act. He also emphasized the timing of the alleged crimes.
Cannon reportedly said to Bove that if the theory of the indictment is that Trump began violating the Espionage Act as soon as he was out of office, there would be other officials who clearly would have run afoul of this provision as charged.
As previously discussed in detail by Law&Crime, the argument of “unconstitutional vagueness” was directed towards the indictment as a whole, as well as count 19 in particular. Trump’s legal team, which included Bove, Chris Kise, and Todd Blanche, challenged this count by highlighting Trump’s “Q clearance.”
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The defense argues that the charge of willful retention of national defense information, specifically related to an “Undated document concerning nuclear weaponry of the United States,” should not have been brought. According to the defense, Department of Energy records indicate that President Trump possessed the relevant “Q” clearance for the charged document. They further claim that documents produced by the Special Counsel’s Office support their conclusion regarding the “Q clearance.”
According to Jack Smith, Trump’s “Q clearance” legally disappeared when Joe Biden was inaugurated as president.
According to Trump’s lawyers, apart from the specific challenge of count 19, they argue that the charges are “unconstitutionally vague” and aim to make it a crime for a former President to operate within the guidelines of the Presidential Records Act (PRA). They claim that as the ultimate Original Classification Authority, as outlined in Article II of the Constitution and Executive Order 13526, the former President has the right to exercise executive privilege and should be immune from prosecution for his official actions.
During the court proceedings on Thursday, Jay Bratt from the Special Counsel’s Office (SCO) expressed that this case is unparalleled. He emphasized the difference between having clearance to access documents and the authorization to remove them to a location of one’s choice, such as a personal “basement.”
“Absolutely, absolutely,” the judge reportedly replied to that point.
Cannon did not immediately find the arguments about the Espionage Act being “unconstitutionally vague” convincing.
According to Politico, she stated that it is difficult to argue that the provision itself is unclear in terms of its constitutionality.
The defense argues that Trump had the authority, under the Presidential Records Act, to designate the classified documents as personal. They claim that he “caused” the materials to be transported out of the White House while he was still in office, making these actions official and protected from prosecution.
According to the special counsel, he has already addressed the broad arguments attempting to dismiss the case. He stated that the Presidential Records Act does not provide any exemption for Trump from prosecution, nor does it give him the authority to unilaterally declare classified documents as his own.
According to Smith, the PRA does not grant Trump immunity from criminal law. It also does not give him the power to unilaterally declare highly classified presidential records as personal records. Furthermore, the PRA does not provide protection for Trump to obstruct a federal investigation without consequences.
During the court proceedings, Bratt argued that President Trump does not have the power to unilaterally convert classified information into personal documents.
According to Politico, Bratt emphasized that it would be incorrect to suggest that a president can unilaterally transform a presidential record, which is mandated by law, into a personal record.
The judge appeared highly skeptical when defense attorney Todd Blanche claimed that presidents, including George Washington, have had the freedom to remove materials from the White House at their own discretion.
According to reports, Cannon expressed skepticism about how this would lead to the dismissal of an indictment.
According to David Harbach, a member of the SCO, the defense was inadequate.
He reportedly emphasized that the documents charged in the indictment are not personal records and are nowhere close to being categorized as such.
On Wednesday evening, the special counsel issued a separate response to the claims made by Stephen Miller’s legal team regarding the National Archives. Specifically, they argued that the criminal referral from NARA violated the Administrative Procedure Act and posed a threat to the entire case.
According to Smith, if we were to accept America First Legal’s argument, it would imply that NARA cannot notify the FBI about a potential shooting threat until it goes through the process of creating a regulation that allows them to do so.
He urged the Court to reject this unsupported and untenable theory.
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Former federal prosecutor Renato Mariotti expressed his skepticism towards the defense’s arguments and its supporters. He considered the motions to be a long shot, although he acknowledged the challenge of predicting Judge Cannon’s ruling due to her previous willingness to entertain unconventional arguments presented by Trump’s team.
In a notable move, Cannon, who was appointed by Trump, issued a ruling in the early stages of the Mar-a-Lago case that was deemed “improper” as it prevented prosecutors from investigating the former president. This decision resulted in a correction from the U.S. Court of Appeals for the 11th Circuit on a legal matter that had an unequivocal answer. However, despite this setback, Cannon continued to oversee the prosecution of the Mar-a-Lago case.
Cannon has consistently challenged the prosecution on various issues, both minor and significant, leading to delays in deadlines and granting extensions to the defense. She has also postponed the trial date, causing the special counsel to accuse her of making a “clear error” on multiple occasions and even threatening to appeal once. Furthermore, due to the potential disclosure of government witness names resulting from this error, the judge inadvertently prompted Trump Employee 5 to disclose his identity on national television.
The prosecution argues that revealing the names of witnesses could potentially put their safety at risk, regardless of their minor or administrative involvement in Trump’s legal troubles. However, this matter will be addressed on a different occasion in Cannon’s Florida courtroom.
Harry Litman strongly criticized the defense for presenting “exotic (at best)” arguments that he deemed frivolous to absurd. According to Litman, these arguments are bound to fail as a matter of law.
“There is a surreal quality to the Cannon hearing, with Trump playing the role of Humpty Dumpty, using words like ‘unauthorized possession’ or ‘national defense info’ and twisting their meanings to suit his narrative,” commented the Los Angeles Times legal columnist and former federal prosecutor. “It’s as if Trump is the Red King, dispensing arbitrary justice. What unites these arguments is that Trump is presenting outlandish claims that are either frivolous or downright absurd. However, he intends to use these contentions as trial arguments rather than valid grounds for dismissing the case.”
According to MSNBC legal analyst and former federal prosecutor Joyce Vance, the outcome of Cannon’s ruling is uncertain and difficult to predict.
According to the attorney, these motions in criminal cases hold little merit and can be considered frivolous. Although the attorney believes that any other judge would likely dismiss these motions without hesitation, Judge Cannon’s rulings are less predictable. Therefore, the attorney suggests that they will have to wait and see how Judge Cannon will rule on these motions.
Norm Eisen, a lawyer and former Ethics Czar in the Obama administration, also expressed his opinion on the Trump motions, describing them as “borderline frivolous.” He further stated that there was no need for the entire day that Cannon had set aside for argument.
Judge Cannon reportedly did not provide any information on when the Mar-a-Lago trial would commence during the proceedings on Thursday.
The hearing resumed in the afternoon following a break but concluded before 3 p.m., even though the allotted time for arguments was a full day. Although Judge Cannon did not make a decision immediately, she did mention that she would issue a ruling promptly.
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