Lawyers for Donald Trump on Tuesday will ask the judge presiding over his classified documents case to prevent prosecutors from using evidence seized during an FBI search of his Florida estate and recordings made by one of his former attorneys.
The arguments are the culmination of a three-day hearing in which prosecutors and defense lawyers have sparred over topics ranging from the legality of the appointment of special counsel Jack Smith, whose team brought the case, to whether the Republican former president should be barred from making comments that could pose a risk to the safety of FBI agents involved in the investigation.
At issue Tuesday is a defense request to suppress the boxes of records that were taken from Trump's Mar-a-Lago home in Palm Beach during the Aug. 8, 2022, FBI search. Defense lawyers contend that the warrant used to justify the search was misleading, in part because it did not include details of internal Justice Department debate about whether the search of the property was an appropriate step. They want what's known in the law as a Franks hearing to further argue against prosecutors being able to use evidence from the search.
Prosecutors say that there was nothing misleading about the warrant application and that the judge who approved the search relied on a “common-sense determination that there was probable cause that evidence of a crime would be found in the location to be searched.”
Lawyers will argue before U.S. District Judge Aileen Cannon in a sealed hearing Tuesday morning. The arguments will be public in the afternoon. Trump is not required to be there.
Trump faces dozens of felony counts accusing him of illegally hoarding classified documents at Mar-a-Lago and obstructing government efforts to get them back. He has pleaded not guilty.
Defense lawyers are also challenging prosecutors' use of evidence obtained from prior Trump lawyers. That includes voice recordings that one of his former attorneys, M. Evan Corcoran, made to document his impressions of conversations he had with Trump about returning classified documents taken from the White House to Mar-a-Lago.
Defense lawyers are normally shielded by attorney-client privilege from having to share with prosecutors details of their confidential conversations with clients. But prosecutors can get around that privilege if they can show that a lawyer's legal services were used by a client in furtherance of a crime, a legal principle known as the crime-fraud doctrine.
The then-chief federal judge in the District of Columbia last year ordered Corcoran to produce those recordings to prosecutors and to testify before a grand jury hearing evidence against Trump.
On Monday, Cannon appeared deeply skeptical of a prosecution request to make as a condition of Trump's freedom pending trial a requirement that he avoid comments that might pose a risk to law enforcement officials involved in the case.
Cannon’s handling of the case has drawn intense scrutiny, with her willingness to entertain assorted Trump team motions and her plodding pace in issuing rulings contributing to a delay that has made a trial before the November presidential election a virtual impossibility.
