The decision came shortly after a hearing in which Trump, the presumptive GOP presidential candidate, sat in court as a criminal defendant and listened carefully to the legal arguments swirling around him.
Cannon voiced skepticism during the hearing at Trump’s claims that he could not be charged because the wording of the Espionage Act was too murky, and a different law called the Presidential Records Act was too broad.
“You would agree that declaring a statute is unconstitutionally vague is quite an extraordinary step?” she asked Trump lawyer Emil Bove at one point.
The judge, who was nominated by Trump and has been on the federal bench since late 2020, sounded especially doubtful of the defense claim that the Presidential Records Act means Trump could simply declare highly classified documents to be his personal property and keep them at Mar-a-Lago, his Florida home and private club.
“It’s difficult to see how this gets you to a dismissal of the indictment,” Cannon said.
As a judge overseeing the first-of-its kind case, in which a former president is charged with dozens of counts of violating national security laws by allegedly stashing classified documents at his home after he left the White House, Cannon has generally been careful not to reveal too much about her thinking in pretrial hearings, but she was more plain-spoken Thursday.
The Florida case is one of four criminal trials Trump is facing. His first, for allegedly falsifying business records in connection with a hush money payment during the 2016 election, was scheduled to begin March 25 in Manhattan, but prosecutors on Thursday suggested a last-minute delay to allow both sides to review thousands of additional pages of potential evidence. Trump, who has sought to delay all of his trials as he runs for president, is seeking a 90-day postponement in that case.
In Florida, Trump and his co-defendants have filed a number of other motions seeking to dismiss the case, including a claim by Trump that he is the target of a vindictive, politically motivated prosecution.
While those motions were not the topic of the hearing on Thursday, Trump’s lawyers referred several times to other public officials who were not charged after classified documents were found at their homes — including the recent decision by special counsel Robert K. Hur not to charge President Biden. Those cases, the lawyers argued, show the charges against their client were unjustified and politically motivated.
Cannon asked several times how prosecutors distinguish Trump’s conduct from that of other former officials.
In his special counsel report, Hur identified several key differences in Biden’s and Trump’s cases, most notably that Trump allegedly possessed far more documents and obstructed government efforts to retrieve them.
Hur’s report infuriated the Biden White House, in part because he was pointedly critical of the president even while saying there was not enough evidence to prove any crimes.
Prosecutor David Harbach, who is working for special counsel Jack Smith, said that difference of opinion “is just Exhibit 110 of why we are not puppets or appendages of the Biden administration.”
Trump, who has argued that his four indictments are interfering with his ability to campaign, did not have to attend Thursday’s hearing but opted to do so. He appeared attentive and relaxed in court, often chatting at the defense table with his lead attorney, Todd Blanche, as other lawyers presented their arguments to Cannon.
The timing of the trial in Florida was not brought up Thursday. Cannon has made clear Trump’s scheduled late-May trial date will be delayed but has not said what new date she will set; prosecutors have asked for the trial to start July 8, while Trump’s lawyers have argued it should be after the November election, or in August at the earliest.
Cannon spent the morning dealing with Trump’s legal claims about the Espionage Act and the afternoon focused on the President Records Act.
For the latter claim, Blanche tried to convince the judge that when Trump sent 15 boxes of documents to the National Archives and Records Administration in early 2022, that was essentially a donation on the president’s part. By keeping other boxes of papers, Trump was declaring those items to be his personal property, the defense lawyer claimed.
“How is a former president to prove that documents are personal, but for the fact that they weren’t sent to NARA?” Blanche said.
Cannon pressed prosecutors and defense lawyers during both sessions on how each would define the words “authorized” and “willful” — two words that are key to the section of the Espionage Act that Trump is accused of violating.
Trump’s team says he was authorized as a former president to access the classified materials and therefore did not willfully retain them in violation of the law.
Prosecutors said the opposite, arguing that as a former president, Trump was no longer authorized to have classified materials. They said the evidence shows Trump understood that hanging on to these materials violated the law.
Cannon voiced concerns about how to instruct the jury on the legal terms at issue when the two sides are so far apart on the words’ meanings.
Whether the Espionage Act is unconstitutionally vague, she said, “invariably leads me to wonder” how the terms would be defined to a jury.
The 1978 Presidential Records Act was passed after President Richard M. Nixon sought to destroy White House tapes during the Watergate scandal. It says presidential records belong to the public and are to be turned over to the National Archives and Records Administration at the end of a presidency.
Trump’s lawyers argued in a filing last month that, as president, he had “virtually unreviewable” authority to designate presidential records as personal ones. The National Archives, they claim, has authority over only presidential records — not personal ones — and therefore had no right to demand that he return the materials.
Trump’s legal team contends that the responsibility to recover presidential documents falls to the Archives, as a civil matter, and that the records agency should not have referred the matter to the Justice Department for potential criminal prosecution.
Prosecutors said Trump’s reading of the PRA is wrong and relies on the faulty view that, “as a former president, the Nation’s laws and principles of accountability that govern every other citizen do not apply to him.”
“Nothing in the PRA leaves it to a President to make unilateral, unreviewable, and perpetually binding decisions to remove presidential records from the White House in a manner that thwarts the operation of the PRA — a statute designed to ensure that presidential records are the property of the United States and that they are preserved for the people,” the filing said.
Barrett reported from Washington.
