Cannon is tight-lipped about trial date for Trump’s classified document case

FORT PIERCE, Florida — U.S. District Judge Aileen Cannon assiduously avoided Thursday any discussion of a central issue hanging over Donald Trump’s criminal case for hoarding classified documents at his Mar-a-Lago home: when she intends to bring it to trial.

At a hearing intended to resolve key pretrial matters, Cannon didn’t even offer a hint about her potential timing on that front, and none of the lawyers for Trump, his co-defendants or special counsel Jack Smith pressed her for an update.

Instead, the judge delved straight into a legal debate about whether Trump was sufficiently aware he could be prosecuted for his handling of the classified materials after he left the White House. That’s one of a long list of issues the judge must resolve before a trial can begin.

Less than three hours after the hearing concluded, Cannon turned down — for now — Trump’s motion to toss out 32 of the 40 felony charges he faces in the case. Trump had argued in the motion that the law he’s accused of violating, the Espionage Act, is too vague to apply in these circumstances.

In a spare, two-page ruling, the judge said the former president’s argument “depends too greatly on contested” legal arguments and factual issues that could be addressed at a trial in the case. She said she would address Trump’s vagueness claims if he raises them later in the case.

It also seemed clear from Thursday’s hearing that Cannon is poised to reject a separate effort from Trump to dismiss the case over a claim that federal recordkeeping laws permitted him to unilaterally move a trove of classified documents to his personal estate in the final days of his presidency.

As she did with the vagueness motion, Cannon repeatedly suggested she viewed questions about whether Trump deemed the records his “personal” property as matters to be argued at trial in front of a jury since the prosecution and defense dispute whether the transfer of the records from the White House to Mar-a-Lago is enough to render them personal under federal law.

The judge seemed perplexed by Trump attorney Todd Blanche’s claim that the indictment in the case effectively concedes the records are personal by saying Trump ordered them sent to his Palm Beach home.

“How can that be right? Your position depends upon a conclusion that there was a designation of the records as personal and requires a resort to materials outside the indictment,” Cannon said.

“We believe the law is crystal clear,” Blanche insisted.

At one point during his presentation, Blanche said President Joe Biden’s lawyers echoed and concurred with Trump’s position by arguing during a recent special counsel investigation into Biden’s handling of classified information that he had discretion to retain personal notebooks and to determine which of his vice presidential records were personal.

Prosecutor David Harbach jumped on that argument to rebut frequent claims from Trump and his aides that Smith is acting on a political vendetta aimed at benefiting Biden.

“That’s just example 110 of why we’re not puppets or appendages of the Biden administration. We’re not,” Harbach said, adding that prosecutors aren’t required to adhere to any legal arguments the White House or Biden’s attorneys may have made.

Harbach also tried to seize on the defense argument about shipping the boxes as a concession that Trump was knowledgeable about their contents and made a conscious decision to move them.

That prompted Blanche to say that “certainly” neither he nor Trump were committing to any position on those issues at trial.

The hearing took place as Cannon, a Trump appointee, is under intense scrutiny about when she intends to reschedule the trial, currently slated to begin May 20 but expected to be postponed until this summer — or potentially much later.

Special counsel Jack Smith has asked for the trial to begin in early July, though Cannon expressed doubts earlier this month about whether that would leave enough time to resolve thorny legal matters. Trump has argued that the trial should not happen until after the November election, but more recently floated an August date as a fallback.

At the end of Thursday’s session, Cannon promised to rule “promptly” on the two issues argued, but she made no mention at all of the schedule for a trial, how close she is to resolving a wide array of other legal issues raised by the case, or even when other defense motions might be argued.

Just before the session concluded, the judge asked both sides if they had any “pressing” matters they wanted to raise with her. Lawyers for the prosecution and defense said no.

Trump is urging Cannon to toss the classified documents case on various grounds.

The judge spent the first half of the almost four-hour hearing focused on Trump’s vagueness claims. Cannon repeatedly pressed Smith’s team about whether any former senior executive branch official had been prosecuted for a similar crime, suggesting that the absence of such cases undermined the idea that Trump could have been aware he might face charges.

Cannon also fixated on a question about when prosecutors believe Trump began violating the Espionage Act, which makes it a crime to willfully retain sensitive national security information without permission. She asked whether he could have been charged as early as the day after he left the White House in January 2021.

“If that’s the theory of the indictment, then there would be other officials who clearly would have run afoul of this provision as charged,” the judge said during an early exchange with Trump attorney Emil Bove.

“I think that this is the first of its kind,” Bove emphasized.

Prosecutor Jay Bratt did cite other prosecutions of former government officials, and he noted that Biden and former Vice President Mike Pence recently faced criminal investigations over their handling of classified records.

The Biden and Pence investigations did not result in criminal charges, and both probes came after the investigation that gave rise to Trump’s indictment, so couldn’t have served as advance notice to him about the legal jeopardy he faced.

Smith’s team has also described Trump’s handling of classified documents as far more egregious than Biden’s. Whereas Biden cooperated fully with a special counsel investigating him, Trump allegedly obstructed the government’s efforts to investigate and retrieve the documents.

“There’s been nothing remotely like this,” Bratt said.

While a series of requests to Trump from officials at the National Archives and later from a grand jury figure prominently in the indictment, under questioning from Cannon, Bratt acknowledged that they were not essential to the government’s claim that Trump had unauthorized possession of the records.

Bratt also noted that the Espionage Act does require prosecutors to show that Trump’s conduct was willful and that the repeated requests underscore that Trump knew his possession of them was unauthorized and that he was required to give them back.

And Bratt noted that the government’s argument that Trump’s possession of the records was “unauthorized” includes the claim that he kept them at his Florida home and social club — a place that prosecutors say wasn’t approved for storage of such sensitive information.

Bratt said that even permission to view restricted government documents doesn’t allow him to take them wherever he wants.

“I can’t take them home and put them in my basement,” he said.

“Certainly, certainly,” Cannon responded.

Trump was flanked by his attorneys at the hearing, which featured just over two hours of arguments before breaking for lunch, and resuming for almost two hours after. The former president seemed to take pains not to look in the direction of Smith, avoiding eye contact as he passed within feet of the prosecutor on the way in and out of the room at lunchtime. Co-defendants Waltine Nauta, Trump’s personal valet, and Mar-a-Lago property manager Carlos de Oliveira also were present for the hearing with their attorneys.

Among Trump’s various motions to dismiss, one seeks to toss the case on the grounds that it is effectively precluded by the Presidential Records Act, the 1978 law Congress passed to prevent future disputes of the sort that erupted over Richard Nixon’s records after he resigned from the presidency.

Nixon claimed his White House records were his property, but the federal government never returned them. His estate was eventually paid $18 million for the files and his famous Oval Office recordings.

Prosecutors argue that there appears to be no proof Trump made any explicit designation of the records as personal and, in any event, doing so wouldn’t immunize him from being charged for retaining classified documents — which they add are inherently important government records, not meant to be designated as “personal.” Harbach said that Congress giving some deference to presidents in the law “should not be read as a carte blanche” to thwart Congress’ intent or have an executive order “trump — lower case ‘t’” the Presidential Records Act.

“It would do violence to the text [of the PRA] to say a president can simply, by fiat, make what the law requires to be a presidential record a personal record,” Bratt said.

The defense’s attack on the Espionage Act is aimed at the 32 felony charges Trump faces of wilfully retaining national defense information. It does not seek dismissal of the eight other felony charges against Trump related to alleged attempts to obstruct and stymie investigators.

The terms in the Espionage Act are extremely vague. The law, which dates to 1917, covers a wide range of material “relating to the national defense” and imposes a penalty of up to 10 years in prison for various sorts of actions related to such material, including “willfully” failing to return it to the government official or employee “entitled to receive it.”

Critics have long called the law overbroad and a potential threat to free speech, although it’s unclear whether anyone foresaw a situation similar to what developed with Trump after he left office.

Trump’s lawyers argued that the language in the law about who is authorized to have national-security documents and to whom they’re supposed to be returned is too vague to enforce, but Cannon said the definition of what kinds of information are covered by the statute is well established at this point.

“It’s hard to say that that provision itself is unconstitutionally vague,” the judge said.

Bove also argued that Trump’s experience receiving classified information briefings as a presidential candidate could have led him to expect that he might still have some authority to retain that information after he left office.

“President Trump’s training with respect to classified information handling happened on the job,” the defense attorney said.

Josh Gerstein and Kimberly Leonard reported from Fort Pierce, Florida; Kyle Cheney reported from Washington, D.C.