U.S. District Judge Aileen Cannon on Thursday rejected one of former President Donald Trump’s motions to dismiss his classified documents case.
Cannon shot down Trump’s motion arguing that the Espionage Act is unconstitutionally vague when applied to a former president.
Cannon after a daylong hearing issued an order saying some of Trump’s arguments warrant “serious consideration” but wrote that no judge has ever found the statute unconstitutional. Cannon said that “rather than prematurely decide now,” she denied the motion so it could be "raised as appropriate in connection with jury-instruction briefing and/or other appropriate motions."
The Trump-appointed judge expressed skepticism about the former president’s arguments during Thursday’s hearing.
“You would agree that declaring a statute is unconstitutionally vague is quite an extraordinary step?” she asked Trump lawyer Emil Bove, according to The Washington Post.
Cannon has yet to issue a ruling on Trump’s other motion arguing that the Presidential Records Act allows him to deem government records as personal.
“It’s difficult to see how this gets you to a dismissal of the indictment,” Cannon said.
But legal experts called Cannon’s ruling on Thursday a temporary victory for special counsel Jack Smith.
“The Judge’s ruling was virtually incomprehensible, even to those of us who speak ‘legal’ as our native language,” former U.S. Attorney Joyce Vance wrote on Substack, calling part of her ruling “deliberately dumb.”
“The good news here is temporary,” Vance wrote. “It’s what I’d call an ugly win for the government. The Judge dismissed the vagueness argument—but just for today. 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 noted that if Cannon had ruled against the government on Thursday, Smith’s team could have appealed.
“But that’s not the case if, after today’s ruling in the government’s favor, she permits Trump to resurrect the motion at trial,” Vance explained. “She could grant the motion to dismiss the case then and at that point, with very rare exceptions (that the Judge would be in a position to prevent), the government can’t appeal. 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.”
MSNBC legal analyst Lisa Rubin noted that Cannon in her order to deny Trump’s motion “took a bunch of swipes at the special counsel.”
“There's some language in that order that basically says, 'I'm not deciding this now,' but she was saying to them, I'm going to read from it right now, that there are still fluctuating definitions of statutory terms and phrases along with disputed factual issues, so rather than prematurely decide now whether this is unsalvageably vague, despite the judicial glosses, some loaded accusations against the special counsel in that,” Rubin explained. “In other words, you are telling me how other courts interpreted this but those are asserted judicial glosses. You are telling me what these terms mean but there are still fluctuating definitions."
Rubin said Cannon essentially “kicked the can down the road.”
“She didn’t give Donald Trump what he wanted,” she said. “On the other hand, she made it difficult for anyone to appeal this, and just sort of held it in abeyance. I don't think it's a victory for the special counsel's office.”
Palm Beach County State Attorney Dave Aronberg told MSNBC that the ruling is only a “temporary victory” for Smith.
“Although it seems like Jack Smith won today because she didn't boot the entire Espionage Act claim, she postponed her decision,” he said. “She denied it without prejudice, meaning that Donald Trump can bring it up again in the middle of the trial, and if Judge Cannon agrees, in the middle of the trial, then double jeopardy attaches, and Jack Smith won't be able to appeal it to the 11th Circuit Court of Appeals and then Jack Smith is done on that claim. So, it's a temporary victory."
