The federal judge overseeing the criminal case accusing former President Donald Trump of taking and refusing to return highly sensitive classified documents is giving serious thought to ending the case altogether, she indicated on Wednesday.
U.S. District Judge Aileen M. Cannon of Fort Pierce, Fla., issued a brief order saying that two legal briefs broadly supporting dismissal of the case “may be of considerable help to the court” in ruling on Trump’s pleas to end the prosecution without a trial.
The judge, who has ruled several times in Trump’s favor on pre-trial legal maneuvering, will take those documents into account as she considers four separate requests by the ex-President’s legal team to bar the prosecution for 32 alleged crimes while the documents were held at his Florida home and golf club, Mar-a-Lago. Friend-of-the-court briefs are often designed to help widen the scope of major legal cases, like this one.
If Judge Cannon, relying on arguments by Trump and these legal allies, were to dismiss the entire case in Florida, it would at least temporarily imperil Special Prosecutor Jack Smith’s prosecution in the case that many outside legal experts say is the strongest of all four of the criminal cases against Trump. At a minimum, dismissal would set off a months-long process of appeals, probably reaching the Supreme Court after next November’s election.
One of the briefs that the judge mentioned Wednesday was filed as part of a sustained campaign of advocacy against prosecuting Trump by former U.S. Attorney General Edwin Meese III, joined by two conservative law professors who share his views, Steven G. Calabresi and Gary S. Lawson, and two conservative advocacy groups. The other brief is by a conservative legal advocacy group, American First Legal Foundation.
Since making a famous speech in 1985, early in his service as Attorney General in President Ronald Reagan’s Administration, Meese has been prominently involved in promoting a sweeping theory of presidential power (the “unitary Executive” theory, which emphasizes that the full power of the Executive Branch lies with one official, the President). Meese and the same two professors have recently filed briefs in the Supreme Court and in lower courts to defend Trump against criminal charges and against moves to disqualify him as a political candidate; so far, no court has discussed those briefs in making any decisions in any of the cases. Judge Cannon will be the first to do so.
In Trump’s challenge to the Mar-a-Lago charges, the broadest is that he is totally immune to all counts. That claim is now under review by the Supreme Court, so Judge Cannon probably would not rule on that until the Justices do.
The judge’s order on Wednesday mentioned two other arguments (it did not discuss a claim that all of the charges are too vague). The two at issue are:
- The case must end because the appointment of Special Prosecutor Smith was unconstitutional and no funds can legally be used to support his efforts, so he had no authority to charge Trump.
- It must end because Trump, while President, had unchecked power to designate official records as belonging to him and federal law does not allow criminal prosecution as a way for the government to retrieve official records.
All issues about the legality of the Florida charges must be decided by Judge Cannon before the trial could start. (Trump’s guilt or innocence of any charge would be decided at a trial.) Currently, the trial is scheduled to begin on May 20, but it is expected to be postponed because of various pre-trial complications. Prosecutors have suggested a July starting date, but Trump’s team wants it delayed until after the November election.
Of course, there would be no trial at all if the charges were thrown out at this stage. If that were to happen, prosecutors could appeal to higher courts, but that would prolong the case for months.
Trump’s lawyers lodged their four claims against the Mar-a-Lago charges on February 24. Early this month, the two briefs now cited by the judge came in, dealing with the two issues that the judge will be considering. Prosecutors did not object to those filings.
On Wednesday, Judge Cannon released a brief order, noting that she had reviewed the request to file those two briefs. She said she found that those parties “bring to the court’s attention relevant matter that may be of considerable help to the court in resolving” those two arguments against going forward with the trial. She thus granted permission to offer them “for consideration.”
The order gave prosecutors and Trump’s lawyers permission to file reactions to those briefs by March 15.
Prosecutor Smith was named to investigate Trump’s potential crimes in November 2022, with authority to prosecute any violations related to the riot at the U.S. Capitol on January 6, 2021, in the aftermath of the 2020 presidential election and any violations related to the handling of classified documents at Mar-a-Lago. Smith is pursuing charges about the January 6 incident in Washington, D.C., and about Mar-a-Lago document-handling in Judge Cannon’s court in Florida.
In naming Smith to handle those cases, Attorney General Merrick Garland relied upon federal laws that give him general authority to make appointments to aid in the Justice Department’s work, and on Department regulations spelling out that authority.
Trump and his legal allies, though, argue that the Constitution makes Smith’s post a “principal officer” of the U.S., and that requires appointment by the President and approval by the Senate. There previously had been a federal law specifically creating the office of special counsel or special prosecutor, and that law’s constitutionality was upheld by the Supreme Court in 1988 (Morrison v. Olson). Congress passed that law in 1978, but it lapsed in 1988, after the Court’s decision. (Edwin Meese was Attorney General at that time, and he named the special prosecutor who probed the famous Watergate scandal involving former President Richard Nixon. Meese, in fact, took steps to limit that prosecutor’s powers.)
The arguments against prosecution for mishandling of classified documents are based on the claim that the Presidential Records Act (which Congress passed in the wake of the Watergate scandal) does not permit criminal prosecution as a way for the government to control the handling and possession of classified documents.
Judge Cannon has not indicated when she will rule on a new date for starting the trial or on the challenges to having a trial at all.
