A federal judge on Monday narrowed the classified documents case against former President Donald J. Trump slightly, saying prosecutors cannot charge him based on an episode in which he allegedly showed a highly sensitive military card to a political advisor months after leaving office.
The decision by the judge, Aileen M. Cannon, was more of a blow to the prosecutors working for the special prosecutor, Jack Smith, who brought the case, than a blow to the allegations against Mr. Trump. Even though Judge Cannon technically removed the incident from the 53-page indictment, prosecutors may still be able to present evidence of it to the jury if the case ultimately goes to trial.
The incident that Judge Cannon hit on took place in August or September 2021 during a meeting at Mr. Trump’s golf course in Bedminster, New Jersey. During the meeting, prosecutors say, Mr. Trump showed a classified map related to an ongoing military operation to a representative of his political action committee, widely believed to be Susie Wiles, who is now one of senior advisors to Mr. Trump’s campaign.
As he showed the map, prosecutors say, Mr. Trump told Ms. Wiles that the military campaign was not going well. The indictment emphasized that she had no security clearance at the time and “no need to know” classified information about the campaign.
The episode involving the map, while indicative of Mr. Trump’s lax handling of classified documents, was not at the heart of the formal allegations in the case. These focus on the White House’s removal of nearly three dozen documents containing sensitive national security secrets and its repeated efforts to prevent the government from recovering them from Mar-a-Lago, its private club and its residence in Florida.
Although Judge Cannon struck the card incident from the indictment, she did not touch on a similar allegation that allegedly occurred months earlier at Mr. Trump’s property in Bedminster. In that episode, prosecutors say the former president showed a classified battle plan to a group of people who came to interview him for a brief written by his former chief of staff, Mark Meadows.
“As president, I could have declassified it,” Mr. Trump said of the battle plan, according to a recording made that day. “Now I can’t, you know. But it remains a secret. »
It is likely that Judge Cannon allowed this allegation to be part of the indictment because prosecutors ultimately accused Mr. Trump of illegally possessing the classified plan.
Mr. Trump’s lawyers, however, had challenged the map’s inclusion, as part of a broader attack on the indictment, saying it was superfluous and irrelevant. They argued that this should never have been in the charges, because Mr. Trump was not formally accused of improperly transmitting classified documents to others, only of illegally retaining them. after leaving the White House.
In his ruling, Judge Cannon rejected the attorneys’ request to dismiss the charges altogether. But she noted that prosecutors took on additional responsibility by choosing to charge Mr. Trump in this case with what is known as a “speaking indictment” — one that describes events in rather evocative language. than simply listing blatant violations of the law.
She said she agreed with Mr Trump’s lawyers, who had argued that much of the language used in the indictment – including the card episode – was “legally unnecessary”. ” and that risks “may arise from a prosecutor’s decision to include in a charging document a detailed account of his or her view of the facts.
Judge Cannon added that it was “not appropriate” to include the card story in the indictment given that one of Mr. Smith’s top deputies had admitted during a hearing last month that it was not directly related to the accusations against Mr. Trump. .
During the hearing, in federal court in Fort Pierce, Fla., Deputy Jay I. Bratt told Judge Cannon that prosecutors included the incident not as accused behavior, but rather as an indication of the former president’s propensity to manage recklessly. classified material.
Mr. Bratt said the evidence was admissible under what is known as Rule 404(b) of federal criminal procedure, which allows prosecutors to tell the jury about “wrongdoing” committed by a defendant who does not are not directly part of the charges in a trial. case.
Judge Cannon appeared skeptical during the hearing of Mr. Bratt’s argument.
“Do you normally include Section 404(b) in indictments?” she asked.
When Mr. Bratt said he had included similar evidence in other indictments, Judge Cannon retorted: “Is that correct?
Judge Cannon left open the possibility that prosecutors could eventually present the card story to the jury at trial. But they will first have to ask his permission to do so, and Mr. Trump’s lawyers can object to that request.
Her decision to remove the episode was the first time she reduced the accusations against Mr. Trump. Through his lawyers, the former president has launched a series of attacks on the indictment, and Judge Cannon has so far ruled on three of them, including this one, the rejecting all.
Shortly before midnight Monday, Mr. Trump’s lawyers filed another motion challenging the indictment. It accused Mr. Smith’s attorneys of failing to properly preserve boxes of documents that the FBI removed from Mar-a-Lago after executing a search warrant at the estate in August 2022.
The lawyers claimed that federal agents who seized the boxes failed to maintain order of the documents inside and failed to take photographs that would have served as “alternative evidence of the order of the documents in each box “.
Additionally, the attorneys argued that prosecutors misled Judge Cannon on at least two occasions, telling him that “the order of documents in each box was intact” when in fact, in some boxes, he wasn’t.
Lawyers have long pointed to the fact that the boxes contained a mix of highly classified documents and common items like letters and newspaper clippings as evidence that they were packed haphazardly and that Mr. Trump had no idea of what they contained. And they claimed prosecutors undermined that defense by allowing the order of items inside some boxes to be changed.
“The prosecutor’s team violated President Trump’s right to due process by failing to keep the documents intact and in the same order in which they were found during the search,” the lawyers wrote.
In court papers filed last month, prosecutors blamed the minor movements on the fact that some of the boxes contained small items like index cards, books and stationery that, as they put it, “move easily when boxes are transported, especially because many boxes are not full.
Prosecutors also noted that the order of documents in some boxes may have changed during a review conducted by an independent arbiter months before charges in this case were even filed. This review, which Mr. Trump himself requested and which Judge Cannon ordered, was conducted to eliminate any documents that might have been protected by executive privilege.
