The federal judge overseeing Donald Trump’s criminal case for retaining classified documents suggested she would deny his attempt to exclude the documents the FBI seized at the Mar-a-Lago club, saying at a hearing Tuesday that the warrant for the search had been properly granted.
The former president’s lawyers had contended the warrant was unconstitutionally vague and the FBI affidavit, used to convince the magistrate judge to find there was probable cause for a crime at the club, contained contextual omissions.
But the US district judge Aileen Cannon suggested she considered the warrant sufficiently specific about which items FBI agents could seize at Mar-a-Lago, and told Trump’s lawyers the omissions would have made no difference as to whether there was probable cause.
The attempt by Trump to suppress the Mar-a-Lago evidence came through a request for a Franks hearing, where a judge applies a four-part test to decide whether false or misleading statements in an affidavit mean the evidence obtained through that search needs to be suppressed.
Even before Cannon, who has shown a proclivity for ruling in his favor on motions about evidence, Trump’s request was ambitious because the legal threshold to get a Franks hearing is onerous. Trump needed to make a “substantial preliminary showing” that the affidavit had parts that were recklessly false.
The evidence Trump’s lawyers presented was limited to complaints that the FBI agent omitted the fact that some top FBI officials preferred a consensual search of Mar-a-Lago, that the FBI tied the need for a warrant to the National Archives, and that Trump did not need a security clearance as president.
Cannon suggested she found those omissions unavailing. She asked Emil Bove, who argued on behalf of Trump: “Why would it have changed the magistrate judge’s determination of probable cause” if the omissions had actually been included?
Trump’s lawyers also complained that the warrant itself was too broad, arguing, for instance, that the warrant allowed FBI agents to seize any documents that fell under the Espionage Act and the Presidential Records Act, without defining the technical terms in the statutes.
That meant the agents were making unilateral, on-the-fly decisions about whether they could seize a particular document, Trump’s lawyers said, suggesting that the warrant should have outlined what “national defense information” meant under the Espionage Act.
Cannon appeared similarly unconvinced by that argument. “It just seems like you’re making policy arguments. It seems far afield from whether the affidavit reached the probable cause standard. I’m unclear what you think should have been included” in the warrant, Cannon told Bove.
The hearing came after a morning session where Trump’s lawyers asked the judge, behind closed doors, to revoke prosecutors’ access to transcripts of voice memos made by Trump’s ex-lawyer Evan Corcoran, which constitute key evidence in the obstruction-of-justice part of the documents case.
The Guardian first reported last week that Trump’s lawyers would ask the judge to exclude the memos, arguing they should not have been given to prosecutors on the crime-fraud exception, which allows prosecutors to see privileged communications if legal advice is used in furtherance of a crime.
The sweeping request could have far-reaching consequences since the memos – with, for example, Trump asking whether they could ignore the subpoena, or a later suggestion to “pluck” out some classified documents instead of returning them to the FBI – are the strongest evidence of Trump’s obstructive intent.
Even if the judge excludes only some of the passages, it could dramatically undercut the strength of the obstruction case.
In the worst case for prosecutors, their evidence of Trump’s obstructive intent could be reduced to CCTV footage of boxes being moved at Mar-a-Lago by his co-defendants Walt Nauta and Carlos De Oliveira, logs of Trump’s calls with Nauta, and testimony about Nauta’s movements.
The obstruction charges center on Trump’s incomplete compliance with an 11 May 2022 grand jury subpoena that demanded the return of any classified documents in his possession, months before the FBI seized 101 classified documents when it searched Mar-a-Lago.
The Corcoran memos – the contents of which were first reported by the Guardian last year – have played a major role in bolstering the charge that Trump conspired with Nauta and De Oliveira to play a “shell game” in hiding boxes of classified documents so Corcoran could not ensure their return.
The indictment quoted the memos as saying Trump responded: “Well, what if we, what happens if we just don’t respond at all or don’t play ball with them?” and “Wouldn’t it be better if we just told them we don’t have anything here?” and “Well, look, isn’t it better if there are no documents?”
After Corcoran found 38 classified documents in the storage room, his memos recount Trump asking him: “Did you find anything? … Is it bad? Good?” and making a sort of plucking motion, suggesting “if there’s anything really bad in there, like, pluck it out”.
Trump’s lawyers were expected to argue that the chief judge in Washington had been overly broad in turning over more than 60 pages of memos, and that the instances of Trump asking whether he needed to comply with the subpoena are questions that every defendant asks to understand the full scope of their obligations.
Trump’s lawyers were also expected to argue that none of the commentary – about Trump asking whether they needed to comply with the subpoena, or the plucking motion – satisfied the crime-fraud exception because it did not amount to Trump using Corcoran’s legal advice for a crime.
