Judge denies, for now, a Trump bid to dismiss charges that he hoarded classified documents

The judge overseeing the case against Donald Trump on charges that he amassed classified documents at his Florida estate has rejected, for now, his bid to throw out the bulk of the case based on the argument that he had the right to keep those documents under a federal law governing presidential records.

However, the three-page ruling Thursday by U.S. District Judge Aileen Cannon left open the possibility for Trump to continue raising that argument if a trial takes place in the case.

In the same decision, Cannon also shot down a request from special counsel Jack Smith to promptly reveal whether she agrees with Trump’s claim that the Presidential Records Act — the post-Watergate law governing White House records — may have authorized him to keep classified records indefinitely even after leaving office.

Smith’s team has denounced that theory as “pure fiction” and urged Cannon to give the prosecutors enough time to appeal if she sides with Trump on that legal question.

But Cannon, a Trump appointee to the federal bench in Florida, called the prosecutors’ demand to confirm what she plans to tell the jury about that issue “unprecedented and unjust.”

Smith has argued that the presidential records law is irrelevant to the legal issues in the case. The mishandling of classified documents, he argues, is governed by a separate law: the Espionage Act, which makes it a felony to have “unauthorized possession” of national defense secrets. Smith has charged Trump with 32 violations of that statute, plus eight other counts alleging that he hindered the government’s efforts to retrieve the documents.

The Presidential Records Act, on the other hand, allows presidents to designate certain non-official documents as “personal” and hold onto them after leaving office. The law defines “personal” documents as those that have no substantive value to the government, but Trump says a president’s decision to label documents “personal” can’t be challenged by prosecutors, even if it may have been erroneous. And Trump’s lawyers have argued that simply by taking the classified documents to Mar-a-Lago at the end of his term, he designated them as personal records and therefore cannot be charged with retaining them.

The claim that Trump somehow declared highly classified military secrets to be nongovernmental personal records defies credulity, Smith has argued in court papers. And even if Trump did so, Smith says, that has no bearing on whether the former president violated the Espionage Act by storing the records haphazardly throughout his Mar-a-Lago club after he left office.

Cannon’s Thursday ruling denied Trump’s bid to immediately toss the 32 Espionage Act counts, but it kept open the prospect that Trump could still raise the Presidential Records Act defense at trial, perhaps boosted by a favorable jury instruction from Cannon about how the two laws interact.

Cannon’s ruling appears to leave Smith with the option of making a pretrial motion of his own to try to effectively shut down that defense by blocking Trump’s attorneys from raising such arguments about the Presidential Records Act in front of the jury.

In a court filing on the issue Tuesday, Smith’s team took the unusual step of threatening to immediately go to the 11th Circuit Court of Appeals if the judge rules that the jury should be told that the presidential records law could have authorized Trump to retain the documents he is charged with keeping at Mar-a-Lago.

Cannon made clear Thursday she’d taken note of the appeal threat, but rejected prosecutors’ attempts to nail her down on the issue right now.

“As always, any party remains free to avail itself of whatever appellate options it sees fit to invoke, as permitted by law,” wrote the judge, who is a Trump appointee.

Legal experts say leaving the question of a possible Presidential Records Act defense open until a trial raises the possibility of Trump being acquitted without prosecutors having any opportunity to get a higher court to review the issue. Under the Constitution’s double jeopardy provision, prosecutors cannot pursue an appeal once a defendant is acquitted at trial. But they can seek appellate review of certain pretrial rulings. In limited instances, courts also have entertained such appeals while the trial is underway.

However, Cannon appeared to chafe at the prosecution’s call for her to declare a firm position now by settling on jury instructions addressing the issue — even though she took the unusual step of asking both sides to stake out their positions on such instructions when a trial looks likely to be months away.

“The Court’s Order soliciting preliminary draft instructions on certain counts should not be misconstrued as declaring a final definition on any essential element or asserted defense in this Case,” she wrote on Thursday. “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.”

Prosecutors and Trump’s attorneys have agreed that the current May 20 trial date in the case isn’t practical for various reasons. Smith’s team has asked to start the trial July 8. Trump’s attorneys are urging that it be pushed until after the November election, and they have offered the fallback position of a trial starting Aug. 12.

Cannon held a scheduling conference more than a month ago to discuss the pros and cons of various timing options for the trial and pretrial proceedings, but she has yet to set a new trial date.

Trump is currently set to go on trial April 15 in a separate criminal case in New York, where he is charged with falsifying business records to cover up payments made just before the 2016 presidential election to suppress allegations of sexual affairs with two women.