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DOJ aims to keep Trump from intervening in Mar-a-Lago case

homesafetytechpros — Fri, 17 Jan 2025 05:24:52 +0000

Left: FILE – Special counsel Jack Smith speaks to the media about an indictment of former President Donald Trump, Aug. 1, 2023, at an office of the Department of Justice in Washington (AP Photo/J. Scott Applewhite, File). Center: U.S. District Judge Aileen Cannon (U.S. District Court for the Southern District of Florida). Right: Donald Trump speaks to members of the media before departing Manhattan criminal court, Monday, May 6, 2024, in New York (AP Photo/Julia Nikhinson, Pool).

The U.S. Department of Justice on Thursday aimed to keep President-elect Donald Trump from intervening in the criminal case against his former co-defendants in the Mar-a-Lago documents matter.

Technically, the extant proceedings concern Waltine “Walt” Nauta, Trump’s personal valet, and Carlos de Oliveira, Mar-a-Lago’s chief of maintenance, both of whom face federal charges. Those charges, however, are almost certain – and widely expected – to be dropped by the incoming Trump administration in a matter of days.

What remains is a time-limited dispute about whether or not a federal judge should allow the limited release of the second volume of former special counsel Jack Smith’s final report on his Trump investigations.

Earlier this month, U.S. District Judge Aileen Cannon set a hearing for Jan. 17 to deal with the remaining issues related to the report.

After that hearing, there is the real possibility the second volume of Smith’s final report could be released to the chairs and ranking members of the House and Senate Judiciary Committees.

And, according to DOJ attorneys, that’s the only issue left after weeks of legal jockeying for position and concomitant court orders.

On Jan. 7, Trump filed his motion to intervene in the case – rubbishing Smith and the effort to publicize the report in no uncertain terms.

“Releasing the Final Report is also improper because this is not Smith’s case anymore; he has been disqualified by a court of law and is now proceeding as a rogue actor with a personal and political vendetta against the Defendants,” the motion says. “Our system simply does not allow a disqualified prosecutor to withdraw from an unlawful appeal only then to embark on a media mudslinging tour through the issuance of a highly detailed and one-sided press release describing the events charged in the superseding indictment and the Government’s theory of prosecution as it relates to those events.”

In the week and two days since, however, several issues were made moot. And, the DOJ itself took on the mantle of the party interested in having the full report, inclusive of the second volume, released.

More Law&Crime coverage: Jack Smith asks 11th Circuit to keep Mar-a-Lago case alive even without Trump — in the name of ‘common sense’

As the case moved up the appellate ladder in a relatively quick fashion, Nauta and De Oliveira claimed the government was, essentially, waging a dirty tricks campaign and trying to game the judicial system. The co-defendants further accused the DOJ of moving to publicize a report that would jeopardize their constitutional rights.

The steady march of motions and orders, and orders and motions, and the resulting paring-down of live disputes, was remarked upon in the government’s opposition to Trump’s motion for leave to intervene.

“Since President-elect Trump submitted his Motion for Leave to Intervene, this Court has denied Defendants’ motion for emergency relief as to Volume One,” the motion reads. “Additionally, as the Court has noted, the Department of Justice has agreed that the Attorney General should not release Volume Two to the public while Defendants’ criminal cases remain pending. Accordingly, the sole issue still pending before this Court—and therefore the sole issue on which any intervention must focus—is the question of whether the Court should enjoin the Attorney General from allowing the Chairmen and Ranking Members of the Senate and House Judiciary Committees to review Volume Two in camera, under conditions designed to protect against any material risk of prejudice to the remaining criminal defendants.”

More Law&Crime coverage: ‘The people have a right to know’: Democrats urge Garland to drop ‘tangential’ charges against Trump Mar-a-Lago co-defendants so Jack Smith report can be released in full

And on that last issue, the government claims, Trump simply has no good reason for his attempt to take part in further arguments.

“The case law provides for intervention in criminal cases only in limited circumstances,” the motion goes on. “Some cases limit intervention to situations in which a third party’s constitutional or other federal rights are implicated by the resolution of a particular motion raised in the case, while others look to whether a would-be intervenor has a legitimate interest that he cannot protect without becoming a party. Neither standard can be satisfied here—the Motion for Leave to Intervene identifies no constitutional or other federal right that could justify intervention in this case. Nor can the President-elect establish that he cannot protect his rights without becoming a party to this action.”

To hear the government tell it, the remaining controversy before Cannon just does not have anything to do with any of Trump’s rights – constitutional or federal. And, the government also says, if Trump really wants to keep the second volume of the report from seeing the light of day, he has chosen the wrong procedural vehicle.

“[I]ntervention is unnecessary here, as the Defendants in the case are seeking the identical relief on which the intervention is predicated,” the motion continues. “If the President-elect seeks to prevent the Chairmen and Ranking Members of the House and Senate Judiciary Committees from being permitted limited access to Volume Two of the Final Report, he could file his own civil action requesting that relief.”

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Trump asks appeals court for delay in Mar-a-Lago case

homesafetytechpros — Wed, 18 Sep 2024 03:52:09 +0000

Left: Special counsel Jack Smith turns from the podium after speaking about an indictment of former President Donald Trump, Tuesday, Aug. 1, 2023, at a Department of Justice office in Washington (AP Photo/Jacquelyn Martin). Right: Republican presidential candidate, former President Donald Trump stands on stage at the Libertarian National Convention at the Washington Hilton in Washington, Saturday, May 25, 2024 (AP Photo/Jose Luis Magana).

Former President Donald Trump has asked a federal appeals court sitting in Atlanta for a bit of extra time to file a motion opposing the government’s efforts to reinstate the Mar-a-Lago indictment against him and two other erstwhile, would-be co-defendants.

A lower court dismissed special counsel Jack Smith’s classified documents charges against the 45th president in an early summer opinion that sent shock waves through political and legal landscapes. Also spared from the prosecution’s maw by that novel reading of the U.S. Constitution were Waltine “Walt” Nauta, Trump’s personal valet, and Carlos de Oliveira, Mar-a-Lago’s chief of maintenance.

On Aug. 26, as widely anticipated, Smith filed to overturn the pro-Trump decision issued by Trump-appointed U.S. District Judge Aileen Cannon. Under circuit rules, Trump has 30 days to respond — which sets the present deadline to respond to Smith on Sept. 25.

On Tuesday, in a 14-page unopposed motion for extension of time to file opening brief, Trump’s attorneys asked the appeals court for another 30 days to get their affairs in order in the Mar-a-Lago case. The motion cites the still-ongoing Smith-helmed prosecution in the District of Columbia as the foremost reason for the requested delay.

Under the terms of the request, Trump, Nauta, and de Oliveira would have until Oct. 25 to respond to the government’s hard-charging 81-page effort to revive the fledgling south Florida case.

The combined extension request argues there is “good cause” for the latest in a long line of delays in the Mar-a-Lago matter.

“President Trump and his counsel are presently engaged in motion practice in a separate case brought by the Special Counsel in the District of Columbia, United States v. Trump, which will require counsel to spend time in a sensitive compartmented information facility (“SCIF”) in Washington, D.C. in the coming weeks to meet that court’s briefing schedule,” the filing reads.

More Law&Crime coverage: Judge slams Mark Meadows for ‘artful alteration’ of Jack Smith’s words, rejects argument Arizona fake electors case is just about ‘receiving’ texts as Trump’s ‘gatekeeper’

The D.C. case was similarly long-delayed — in a nonsimilar fashion; by a long-and-winding, and largely successful, appeal to the U.S. Supreme Court on presidential immunity issues. Proceedings in the D.C.-based matter recently began again in earnest.

In an early September order, prosecutors were given until Sept. 26, to file their first brief addressing the new concept of presidential immunity in criminal prosecutions. U.S. District Judge Tanya Chutkan, a Barack Obama appointee, gave Trump until Oct. 17, to respond. Then, Smith’s office has until Oct. 29, six days prior to the 2024 general election, to file his reply. A similar suite of deadlines was set by the court over the defense’s appointments clause-related arguments challenging the special counsel’s authority to oversee the case.

But it’s not the D.C. briefing schedule alone that Trump, Nauta and de Oliveira say necessitates a 30-day briefing pause.

More Law&Crime coverage: Georgia judge keeps Fani Willis’ RICO case in place even as he tosses 2 Trump charges, but a footnote shows there’s a much larger fight brewing

There’s also the issue of Trump’s conviction in New York over 34 felony counts of falsifying business documents.

“President Trump and his counsel are also litigating issues of first impression in the U.S. Court of Appeals for the Second Circuit that require briefing in advance of a potential sentencing hearing presently set for November 26, 2024,” the filing goes on.

Trump recently tried, and failed, to have the federal court system obtain jurisdiction over the Empire State case. Meanwhile, the judge who oversaw the ex-president’s criminal trial rescheduled a planned Sept. 18, sentencing hearing in light of the upcoming election.

More Law&Crime coverage: ‘DENIED’: Trump strikes out as federal judges say hush-money case must stay in New York state court

The motion for an extension filed with the 11th Circuit also says Nauta recently hired a new lawyer who “must be familiarized with the facts giving rise to this appeal and has pressing work before this Court and others that makes the existing schedule challenging.”

Smith’s team, for their part, appear unruffled by the former president’s request to delay the Mar-a-Lago case further.

“In light of the procedure described in Eleventh Circuit Rule 31-2(a) and without expressing a view on whether appellees have established good cause, the government does not oppose appellees’ 30-day extension request,” the government wrote in a message provided to the defense and entered into the record by the extension motion.

Under 11th Circuit rules, a statement referencing opposing counsel’s position on an extension of time is mandatory.

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Special counsel urges Mar-a-Lago judge to redact new filings

homesafetytechpros — Sun, 31 Mar 2024 12:39:54 +0000

Left to right: Special counsel Jack Smith arrives to speak about an indictment of former President Donald Trump, Aug. 2023. (AP Photo/Jacquelyn Martin)/U.S. District Judge Aileen Cannon during remote Senate Judiciary Committee nomination hearing. (U.S. Senate via AP)/Former President Donald Trump speaks at Trump National Golf Club in Bedminster, N.J. June 2023. (AP Photo/Andrew Harnik, File)

Special counsel Jack Smith on Friday urged the federal judge overseeing the Mar-a-Lago classified documents case to enforce certain redactions on two court filings recently submitted by former President Donald Trump’s valet Waltine “Walt” Nauta.

Nauta faces charges of conspiracy to obstruct, making false statements to the FBI, and withholding documents — connected to an alleged scheme to delete Mar-a-Lago camera footage and conceal boxes of classified documents from a grand jury. In reply briefs, he argued the indictment should be thrown out because he was singled out via vindictive prosecution and impermissibly retaliated against via prosecution because he declined to testify in front of a grand jury.

On Wednesday, Smith’s office addressed several alleged substantive and procedural deficiencies in Nauta’s arguments, categorizing them as “deeply flawed” and “meritless” and simply filed too late.

The government’s Friday filing asks U.S. District Judge Aileen Cannon to intervene in a dispute over whether Nauta can publicize the names of potential government witnesses and other information.

“The Government has conferred with counsel for all three defendants concerning this Motion, and they maintain that the Government has not met its burden to support restricting public access to the two reply briefs,” the special counsel’s five-page motion explains.

According to the filing, defense attorneys and Cannon were also emailed so-called “red box” versions of the two Nauta reply briefs if the government’s “extensive” proposed redactions are accepted.

“First, beginning on page two of the Reply and continuing through page four, Nauta references, summarizes, and quotes from filings that this Court has ordered sealed,” the motion argues, in reference to the vindictive prosecution-based reply. “The Government does not object to the Court unsealing these docket entries, but until it does so, these portions of the Reply must be redacted.”

Smith also complains that Nauta’s attorneys are trying to expose information about two separate sealed grand jury proceedings.

“Nauta references a sealed grand jury proceeding in the District of Columbia that occurred as part of this investigation, and that involved another client of his counsel,” the filing goes on. “Nauta references a sealed grand jury proceeding in the District of Columbia that involved a third client of his counsel, but that was unrelated to this case.”

The government argues the second grand jury proceeding has nothing to do with the present case because of the order of events.

“Notably, the events Nauta described occurred before the appointment of the Special Counsel,” the government’s motion continues. “Neither the undersigned nor any other line prosecutor working on the classified documents investigation had any involvement in that proceeding, nor would they have been aware of it when it occurred.”

More Law&Crime coverage: ‘No longer workable’: Trump blames need to push back Mar-a-Lago trial date indefinitely on NY prosecution he successfully delayed

In the vindictive prosecution reply, Nauta allegedly uses the names of “potential” government witnesses, Smith says.

This issue, of course, has been a consistent theme throughout pretrial filings in the case. Cannon has been heavily criticized by the prosecution and a steady stream of legal and political pundits for her tentative decisions signing off on publishing witnesses’ names.

In the Friday filing, Smith references the ongoing feud between the government on one side and the court and defense on the other, briefly arguing that “witness safety and privacy are paramount pretrial.”

The special counsel’s office also objects to another recent filing submitted by Trump’s co-defendant.

“Throughout Nauta’s Motion to Suppress Reply, he includes the names of Government witnesses,” the filing says. “The Government is seeking to redact their names and any pronouns revealing their gender. For the reasons stated above, the Government has satisfied its burden for these limited redactions.”

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Mar-a-Lago largely sides with Jack Smith in CIPA order

homesafetytechpros — Fri, 22 Mar 2024 17:10:12 +0000

Judge Aileen Cannon (left) during a Senate Judiciary Committee oversight nomination hearing on July 29, 2020 (U.S. Senate via AP), Special counsel Jack Smith (right) speaks about an indictment of former President Donald Trump, Aug. 1, 2023, at a Department of Justice office in Washington. (AP Photo/Jacquelyn Martin)

The special counsel can “redact, substitute, or delete” two categories of classified information and “most” of a third category from shareable discovery, the judge in former President Donald Trump’s Espionage Act prosecution ruled Friday.

U.S. District Judge Aileen Cannon wrote that Jack Smith’s motions prevailed as far as categories 3 and 4 are concerned — the first dealing with “documents relating to a potential government witness” and the second with “classified information which the Special Counsel seeks to delete from discovery in its entirety.”

Cannon also granted “most of the Category 2 requests,” but not all.

“Category 2 contains a subset of After-Action Reports (‘AARs’) and related emails from which the Special Counsel seeks to redact limited words and phrases,” she wrote. “The vast majority of the requests are not topically related to the charged documents and thus neither relevant nor helpful to the defense. A very limited number of redaction requests, however, cannot be resolved at this stage.”

The judge said that the “words and phrases” Smith wants to redact from reports are “bound up in requests made in Defendants’ Motions to Compel, and/or (2) have potential bearing on essential elements” of the willful retention of national defense information charges Trump faces.

“Thus, pending resolution of Defendant’s Motions to Compel and a follow-up ex parte CIPA § 4 hearing with the Special Counsel to clarify the nature of the information at issue, the Court reserves ruling on the few requests identified in the Classified Order,” she wrote.

Similarly, category 1 — “two sensitive intelligence reports directly related to a document charged in one of the unlawful-retention counts” — cannot be ruled upon at this time, Cannon said. Only after the judge rules on Trump’s motions to compel discovery — and/or only after another Classified Information Procedures Act (CIPA) § 4 hearing — will the judge address category 1, Cannon said.

Back in December, the judge and Jack Smith clashed as the special counsel insisted that unsealing certain details about its CIPA § 4 motion would reveal the “contours and extent” of the government’s plans to delete classified information from discovery.

Asserting a need to “protect four separate categories of classified information from disclosure” to criminal defense lawyers, and to Trump and his co-defendants, valet Walt Nauta and Mar-a-Lago property manager Carlos De Oliveira, Smith argued that “even disclosing” the “number of categories of classified information that the Government seeks to delete from discovery would reveal the contours and extent of the Government’s CIPA Section 4 motion.”

While Smith did not succeed in hiding the number of categories, he had better luck on Friday on his “redact, substitute, or delete” requests. Still, it was not a total win for the special counsel.

At the end of her order, Cannon did acknowledge the existence of Jack Smith’s pending motion for reconsideration. Recall that the special counsel threatened to appeal to the U.S. Court of Appeals for the 11th Circuit if the judge did not correct her “clear error” threatening to name government witnesses through discovery.

“The Court also reserves docketing the Special Counsel’s proposed public stand-alone brief as to Defendant Trump—previously submitted ex parte and under seal as an attachment to the Special Counsel’s Third Classified Supplement to CIPA § 4 Motions—until the Court has resolved the Special Counsel’s pending Motion for Reconsideration,” Cannon wrote.

At least one witness for the prosecution, Trump Employee 5, revealed his identity after it appeared the judge was leaning towards outing witnesses regardless of Smith’s protestations.

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Lawyers call Mar-a-Lago judge’s latest order ‘insane’

homesafetytechpros — Tue, 19 Mar 2024 15:05:09 +0000

Donald Trump (AP Photo/Mike Stewart), File), U.S. District Judge Aileen Cannon, special counsel Jack Smith (AP Photo/J. Scott Applewhite, File)

Lawyers were left scratching their heads over the Mar-a-Lago trial judge’s Monday order asking the prosecution and defense to propose jury instructions under the assumption that the Presidential Records Act (PRA) allowed former Donald Trump to unilaterally decide that classified documents were personal.

Unsurprisingly, the reaction to U.S. District Judge Aileen Cannon’s order was swift and unequivocal, with some pointing out that likelihood of acquittal has gone up.

Conservative lawyer George Conway called the order the “most bizarre” he’s ever seen a federal judge docket, leapfrogging two other orders Cannon has already issued in the case.

“In the decades that I have been a lawyer, this is the most bizarre order I’ve ever seen issued by a federal judge,” Conway said. “What makes that all the more amazing is that the second and third most bizarre orders I’ve ever seen in federal court were also issued by Judge Cannon in this case.”

Conway’s criticism was in response to a post by former Obama administration “Ethics Czar” Norm Eisen, who wrote that the order was “clumsy & amateurish” and ignored the “different body of law” that governs classified documents, “including EO 13526.”

Since a motion hearing last week, Cannon has rejected Trump’s motion to dismiss on grounds of Espionage Act “unconstitutional vagueness” — without prejudice, meaning the defense can raise it again later and “as appropriate in connection with jury-instruction briefing and/or other appropriate motions.” But the judge has not yet ruled on the other argued motion to dismiss, under the Presidential Records Act (PRA).

When special counsel Jack Smith submitted his arguments, he, like Eisen, emphasized that executive order 13526 — “in force throughout Trump’s Presidency and through the allegations in the Superseding Indictment” — states that classified materials “can be accessed only by a person who an appropriate United States official determines is eligible for such access; who has signed an approved non-disclosure agreement; and who has a ‘need to know’ the classified information.”

“Under the provisions of EO 13526, the Superseding Indictment alleges, once Trump left office, he no longer had authorization to possess classified information, he never received a waiver entitling him, as a former President, to possess it, and he stored documents at a location that was not an authorized location for the storage, possession, review, display, or discussion of classified documents,” the special counsel said, rejecting the notion that the PRA allowed Trump to declare, by fiat, that national defense information documents were merely personal belongings.

Now, Cannon has ordered the defense and the prosecution to file, by April 2, “proposed jury instructions limited to the essential elements” of the 32 willful retention of national defense information counts Trump faces — but in light of the PRA. She ordered the two sides to “engage with” two “competing scenarios and offer alternative draft text that assumes each scenario to be a correct formulation of the law to be issued to the jury [.]” The latter scenario would plainly pave a path for acquittal:

(a) In a prosecution of a former president for allegedly retaining documents in violation of 18 U.S.C. § 793(e), a jury is permitted to examine a record retained by a former president in his/her personal possession at the end of his/her presidency and make a factual finding as to whether the government has proven beyond a reasonable doubt that it is personal or presidential using the definitions set forth in the Presidential Records Act (PRA).

(b) A president has sole authority under the PRA to categorize records as personal or presidential during his/her presidency. Neither a court nor a jury is permitted to make or review such a categorization decision. Although there is no formal means in the PRA by which a president is to make that categorization, an outgoing president’s decision to exclude what he/she considers to be personal records from presidential records transmitted to the National Archives and Records Administration constitutes a president’s categorization of those records as personal under the PRA.

The attorney reactions only amped up from here, with some suggesting that Smith may have enough to seek the “extraordinary remedy” of a writ of mandamus from the U.S. Court of Appeals for the 11th Circuit, a court that has had to overturn Cannon’s decision-making before.

Former special counsel Robert Mueller’s ex-top lieutenant Andrew Weissmann said that mandamus should be on the table for Jack Smith after Cannon’s latest bit of “legal inanity.”

“This is the kind of legal inanity that could lead Jack Smith to seek to mandamus Judge Cannon- ie to get the 11th Circuit appeals court to hear this and reverse her for the third time- which could also be the proverbial three strikes and you’re out,” Weissmann said.

This is the kind of legal inanity that could lead Jack Smith to seek to mandamus Judge Cannon- ie to get the 11th Circuit appeals court to hear this and reverse her for the third time- which could also be the proverbial three strikes and you’re out. https://t.co/dMjhf9bm6q

— Andrew Weissmann (weissmann11 on Threads)🌻 (@AWeissmann_) March 18, 2024

Weissmann repeated this on MSNBC.

“There’s a reason you’ve never seen anything like it,” Weissmann said, before dropping two M-words: the first was “meshuggenah,” describing the order, and the second was mandamus.

“Please draft a jury instruction assuming that the earth is flat. And the second one is please draft a jury instruction that the earth is square,” Weissmann characterized the order. “And so, the second M-word is mandamus. Mandamus is the ability — it’s not an appeal. It’s for extraordinary actions by a district court that so clearly violate the law that you can appeal it right then and there.”

“What she did today is so nutty,” he added.

National security lawyer Bradley Moss, also appearing on MSNBC alongside Weissmann, cautioned against seeking mandamus right away.

“So, Jack Smith, if he doesn’t take Andrew up on his idea of seeking mandamus, and I actually don’t think they’re going to do that yet, I think they’re going to try to fashion a response to this to basically say ‘Alright, judge, I’m not sure where you were going with that, but um, no, that’s not how this works. If you think that’s the state of the law is what you put in that second line item, that’s fine. Issue a ruling, grant Trump’s motion to dismiss, as he outlined it under the Presidential Records Act, and will take it to the 11th Circuit,”” Moss said. “But that’s an issue of law for the judge, that’s not an issue for the jury.”

“There’s nothing for the jury to do with that instruction. If that is what they went to trial with, I was Trump’s lawyers I’d sit there and take a nap through trial, play Candy Crush, and then the moment the government rested, ‘I move for a directed verdict for acquittal’ because you can’t lose,” he continued. “Because the jury instruction automatically grants you a win.”

Moss suggested Smith will push back on the order before seeking mandamus. The attorney separately called the second scenario posed by Cannon “legally insane.”

This Order makes no sense. I cannot fathom how these are legal issues for the Court to decide and not questions of fact for any jury. https://t.co/xksghbgKd6

— Mark S. Zaid (@MarkSZaidEsq) March 18, 2024

Attorney Robert Kelner viewed the mandamus route “unlikely” at this stage, but he still regarded the order as “sufficiently bonkers” to make Smith think about it.

While it’s unlikely, it seems to me Cannon’s latest order is sufficiently bonkers that Jack Smith might at least entertain the thought of a mandamus motion. I doubt he’ll do it. But he’s got to be thinking about it.

— Robert Kelner (@robkelner) March 18, 2024

George Conway scathingly chimed in again by saying it’s clear to him that Cannon has no idea what she’s doing as a lawyer, let alone as a judge.

Apart from whether or not Judge Cannon is trying to help Trump here, this order makes clear beyond peradventure that she has no idea what she’s doing even simply as a lawyer. https://t.co/P1QrbenI1O

— George Conway (@gtconway3d) March 18, 2024

Smith has already threatened to appeal if Cannon separately refuses to reconsider a “clear error” that could out government witnesses through discovery, but the judge has not made a ruling on that issue either.

The special counsel made waves once before by seeking a rarely granted writ of certiorari before judgment from the U.S. Supreme Court on Trump’s claims of “absolute immunity” from prosecution in his Jan. 6 case, so perhaps the Special Counsel’s Office wouldn’t shy away from pursuing similarly extraordinary relief.

Read the order here.

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Mar-a-Lago judge refuses to dismiss indictment against Trump

homesafetytechpros — Fri, 15 Mar 2024 12:50:19 +0000

Left: Special Counsel Jack Smith. (AP Photo/J. Scott Applewhite, File); Center: Judge Aileen M. Cannon (U.S. Senate); Right: Donald Trump. (AP Photo/Charlie Neibergall, File).

A federal judge late Thursday declined to dismiss former President Donald Trump’s charges in the Mar-a-Lago classified documents case.

The terse, two-page order by U.S. District Judge Aileen Cannon rejects arguments by the 45th president’s attorneys that the first 32 counts in the superseding indictment are “constitutionally vague.”

“Although the Motion raises various arguments warranting serious consideration, the Court ultimately determines, following lengthy oral argument, that resolution of the overall question presented depends too greatly on contested instructional questions about still-fluctuating definitions of statutory terms/phrases as charged, along with at least some disputed factual issues as raised in the Motion,” Cannon wrote.

In her order, the judge found it premature to decide whether a series of statutory terms disputed by Trump “in these circumstances yields unsalvageable vagueness despite the asserted judicial glosses.”

In their February motion to dismiss on vagueness, defense lawyers argued 18 USC § 793(e) — the Espionage Act statute, which forms the basis of the first 32 counts in special counsel Jack Smith’s revised indictment — has long been considered legally problematic, resulting in various courts that have “endeavored to ‘save’ the statute.”

Trump claims three phrases are vague: (1) “unauthorized possession,” (2) “relating to the national defense,” and (3) “entitled to receive it.”

Cannon’s ruling suggests she is open to allowing the defense to continue raising claims that at least some terms in the Espionage Act have been unconstitutionally enlarged by other courts to encapsulate benign conduct. Those claims, however, cannot form the basis for dismissing the entire indictment.

During oral arguments by the state and defense on the motion that took up several hours earlier on Thursday, Cannon suggested the issue would be more appropriate for a jury to hear and decide.

As Law&Crime previously reported, the Trump-appointed judge also expressed some direct misgivings about arguments advanced by the defense in service of making the Espionage Act charges disappear.

“It’s hard to say that provision itself is unconstitutionally vague,” Cannon reportedly said.

Trump’s attorneys have essayed arguments — in various motions and during Thursday’s hearing — that the disputed statutory terms are historically rife with differing definitions, lacking in clarity, previously applied in circumstances entirely unlike his case, unnecessarily broadened into unfair catch-alls by activist judges, or simply not applicable to what Trump did because of a separate statute authorizing his behavior.

The government has ridiculed the defense’s claims as “unfounded.”

In her order, the court denied Trump’s arguments without prejudice and noted they could be raised again “as appropriate in connection with jury-instruction briefing and/or other appropriate motions.”

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Trump gives detailed arguments for Mar-a-Lago case dismissal

homesafetytechpros — Thu, 14 Mar 2024 12:10:53 +0000

Left: Former President Donald Trump speaks during a break in his civil business fraud trial, Oct. 25, 2023. (AP Photo: Seth Wenig). Right: Special counsel Jack Smith speaks to the media about an indictment of former President Donald Trump, Aug. 1, 2023. (AP Photo: J. Scott Applewhite.)

Former president Donald Trump on Wednesday filed long-anticipated reply briefs arguing why the charges against him should be dismissed in the Mar-a-Lago classified documents case.

In two separate filings, attorneys representing the 45th president again asked U.S. District Judge Aileen Cannon to drop the charges.

The briefs direct their focus on recent arguments against dismissal made by special counsel Jack Smith – and come on the eve of a hearing in southern Florida dedicated to hashing out those issues.

Unconstitutional Vagueness

In their February motion to dismiss on vagueness, defense lawyers argued 18 USC § 793(e) – the Espionage Act statute, which forms the basis of the first 32 counts in the superseding indictment – has long been considered somewhat legally problematic, resulting in numerous courts that have “endeavored to ‘save’ the statute.”

“Those claims are unfounded,” Smith argued in the government’s opposition motion last week.

Trump’s Wednesday filing accuses the government of conceding that “judicial gloss” is necessary to make the Espionage Act claims work against the former president. The defense claims this is little more than evidence that prior courts have gone beyond the text of the law to “save statutes that Congress should have written more clearly.”

“The Special Counsel’s Office starts out with the baseless and untenable claim that the ‘statute’s prohibitions are clear,”” the Wednesday defense filing reads. “Perhaps what the Office meant—and this would be closer to the truth—is that courts facing inapposite factual circumstances have tried to make § 793(e) clearer through ‘explicat[ions]’ and ‘many judicial decisions’ that have broadened the statute’s scope beyond the plain meaning of the text Congress chose.”

Trump claims three phrases are vague: (1) “unauthorized possession”; (2) “relating to the national defense”; and (3) “entitled to receive it.”

In each instance, the defense argues, Smith’s office has mangled case law, intentionally made things up, and/or relied on non-circuit precedents that are the result of judges acting out of turn.

Trump says the government “wholly mischaracterized” a case that was about “classical spying” and not about document retention – making that case “irrelevant” to Smith’s claims that there was “clarity” about what “unauthorized possession” means in the present context.

The government previously argued: “Dictionary definitions establish that ‘unauthorized’ means without official approval or permission.”

Trump disputes this definition by noting that another case cited by the government was about receiving private documents “without permission.” He counters the government by saying Smith’s office “forced the word ‘official’ into their made-up definition.”

“The cobbled-together attempt by the Special Counsel’s Office fails as applied to President Trump,” the first filing argues. “As the Court already observed, President Trump was ‘once the country’s chief classification authority.’ He occupied that role as to each of the documents at issue in Counts 1–32.”

For the “national defense” (NDI) issue, Trump simply asks Cannon to ignore how many other courts have broadened the term.

“The ‘judicial interpretations’ identified by the Special Counsel’s Office do not, in fact, ‘narrow and clarify the text of the NDI Clause,” Trump’s attorneys argue. “Instead, these decisions impermissibly increased the scope of the statute in a manner that cannot be condoned.”

The ex-president’s defense attorneys also say the “entitled to receive” language in Section 793 (e) is vague in this case specifically because Trump designated all the documents in question as his “personal records” subject to the Presidential Records Act (PRA).

“The issue is that § 793(e) offers no clarity regarding who is ‘entitled to receive’ a former President’s personal records under the PRA, pursuant to designations covered by presidential immunity, which are also subject to invocation of the executive privilege,” the first Wednesday filing argues.

This line of argument feeds directly into the second defense filing submitted to the court on Wednesday afternoon.

The PRA

The sum and substance of the second defense filing boil down to claims that Trump was president when he moved the documents from the White House to Mar-a-Lago and that he used the authority of the PRA to render those documents his “personal records.”

Last week, Smith argued that Trump’s reliance on the PRA to dismiss the entirety of the indictment was “fundamentally wrong.”

The special counsel’s office accused the defense of “alchemy” and argued that executive order 13526 — “in force throughout Trump’s Presidency and through the allegations in the Superseding Indictment” — states that classified materials “can be accessed only by a person who an appropriate United States official determines is eligible for such access; who has signed an approved non-disclosure agreement; and who has a ‘need to know’ the classified information.”

Trump directly addresses the alchemic argument – saying this is the only interpretation that actually makes sense.

“President Trump’s designation of records as ‘personal’ under the PRA by allegedly removing them from the White House while acting as President is not the product of ‘alchemy,” the second Wednesday defense filing reads. “Rather, this is the only fair inference from the Office’s allegation in the Superseding Indictment that President Trump ’caused’ boxes ‘to be transported’ to Mar-a-Lago at a time when he was still President.”

Trump’s attorneys also address Smith’s reliance on the executive order – saying there is simply no reason for the court to apply its classification scheme to the documents found at Mar-a-Lago.

“Executive Order 13526 does not—and cannot—override the PRA,” the second Wednesday defense filing goes on.

First, Trump notes, an executive order is inferior to a statute. Second, the defense argues, the specific executive order only mentions “presidential records” but not “personal records” under the PRA.

“So Executive Order No. 13526 does not address, much less refute, President Trump’s argument regarding his PRA designations,” the defense filing goes on. “The suggestion by the Special Counsel’s Office that President Trump’s designations of the records is implausible does not stand to reason.”

The entirety of the indictment – even beyond the Espionage Act charges – should also be dismissed because the concomitant criminal referral by the National Archives was premised on actions that were not crimes, the defense argues. The brief goes on to say the criminal referral was, therefore, an improper agency action.

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Jack Smith slams latest attempt to stall Mar-a-Lago case

homesafetytechpros — Tue, 12 Mar 2024 11:25:48 +0000

Left: Former President Donald Trump, center, sits at the defense table at New York Supreme Court, Dec. 7, 2023, in New York City. (AP Photo/Eduardo Munoz Alvarez, Pool, File); Right: Special counsel Jack Smith speaks about an indictment of former President Donald Trump, Aug. 1, 2023. (AP Photo/Jacquelyn Martin, File).

Special counsel Jack Smith urged the federal judge overseeing the Mar-a-Lago classified documents case against former President Donald Trump not to give in to the latest efforts by the defense to further delay proceedings in a pointed motion filed late Monday.

On Monday morning, a defense attorney for the 45th president requested an additional two weeks to file pretrial discovery motions with U.S. District Judge Aileen Cannon by citing Trump’s need to prepare for his upcoming New York City-based hush-money trial — which is scheduled to begin later this month. Meanwhile, in a different motion docketed Monday but dated March 7, that same defense attorney, Todd Blanche, moved to adjourn the Empire State’s case against Trump until the U.S. Supreme Court rules on presidential immunity issues which are arguably implicated by some of Manhattan District Attorney Alvin Bragg’s recently-filed pretrial motions.

“An extension of time such that they receive more than twice the time allotted by the Local Rule is unreasonable,” the motion in opposition reads. “The briefing schedule has been in place for months.”

Cannon previously set a deadline of Thursday, March 14, to submit replies on all of the pending pretrial motions. A hearing is also slated to occur that same morning that will address just some of the many pretrial issues that have consumed and serially delayed the case.

In their federal motion, Trump’s attorneys said they have “no intention of causing unnecessary delay in these proceedings,” and asked for an extension until March 24 to reply to certain motions filed by the government. The defense said it was prepared to file replies on motions to dismiss the indictment based on the Presidential Records Act and the Espionage Act the day before the March 14 hearing.

In the government’s terse opposition motion, and a footnote, Smith suggests Trump is trying the legal equivalent of the old army game.

“Only now, on the eve of the reply deadline, does the defense complain that it needs more time — mostly based on circumstances about which they have been aware throughout the pendency of their motions: the trial date in New York has been in place since 2022,” the motion reads. The corresponding footnote explains: “Trump has also sought to adjourn the New York trial.”

The former president’s bid to delay further still in the Sunshine State also cites some alleged difficulties being experienced by his co-defendants, Waltine Nauta, Trump’s longtime butler, and Carlos De Oliveira, Mar-a-Lago’s property manager.

“Defendants Nauta and De Oliveira are reviewing physical evidence possessed by the Office that is potentially relevant to their reply submissions,” the request to extend the deadlines reads. “Defendant Nauta is in the process of conferring with the Office regarding access to materials relating to grand jury practices in the District of Columbia that are relevant to his reply in support of pending selective and vindictive prosecution motion.”

Smith dismisses Nauta and De Oliveira’s concerns out of hand.

“[T]he evidence DeOliveira will inspect tomorrow has been available to them since the Government first provided them discovery,” the government’s opposition motion retorts. “Nauta fails to explain how any questions about grand jury practice in the District of Columbia could affect his reply briefing and why he has waited until now to seek this information.”

Trump’s earlier Monday filing also complains that in order to travel to Florida for the March 14 hearing, the defense is losing “time we would otherwise use to prepare the other reply submissions.”

Again, Smith argues that is not a valid basis to shift the deadlines.

“And the fact that the defense must travel to Florida for a hearing on Thursday is not unique to those teams and poses no cause for such delay,” the government’s motion concludes. “The Court should deny the defendants’ motion.”

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Trump signals Mar-a-Lago immunity claim despite appeal order

homesafetytechpros — Wed, 07 Feb 2024 15:44:46 +0000

Left: FILE — Former President Donald Trump speaks at Trump National Golf Club in Bedminster, N.J., June 13, 2023, after pleading not guilty in a Miami courtroom earlier in the day to mishandling classified documents. (AP Photo/Andrew Harnik, File). Right: In this image from video provided by the U.S. Senate, Aileen M. Cannon speaks remotely during a Senate Judiciary Committee oversight nomination hearing to be U.S. District Court for the Southern District of Florida on July 29, 2020, in Washington. (U.S. Senate via AP).

Despite losing big at the appeals court level, Donald Trump has signaled an intention to press forward with his immunity defense in at least one of the multiple criminal prosecutions facing the former president.

Lawyers for Trump filed a motion to adjourn certain pretrial motion deadlines on Tuesday in the Florida case over the former president’s allegedly wrongful retention of documents in his Mar-a-Lago home. They have asked U.S. District Judge Aileen Cannon, a Trump appointee, to allow Trump, along with co-defendants Waltine Nauta and Carlos De Oliveira, to file evidentiary motions within one month of Cannon’s decision on motions to compel discovery currently before her.

Buried within the justification for the request is an indication that Trump will continue to pursue his “immunity” claim, despite having been repeatedly told that the defense doesn’t stand up to legal scrutiny.

“Defendants currently plan to file on February 22, at minimum, a series of motions to dismiss the Superseding Indictment and certain of the charges therein,” the Tuesday motion says. “Specifically, although the defense is still evaluating potential motions, we expect to file motions on February 22 relating to, inter alia, presidential immunity, the Presidential Records Act, President Trump’s security clearances, the vagueness doctrine, impermissible preindictment delay, and selective and vindictive prosecution.”

The motion was filed the same day as the U.S. Court of Appeals for the District of Columbia unanimously ruled that Trump is not immune from criminal indictment in Washington, D.C., where he faces four felony charges alleging he criminally conspired to overturn the results of the 2020 election.

“For the purpose of this criminal case, former President Trump has become citizen Trump, with all the defenses of any other criminal defendant,” the ruling states. “But any executive immunity that may have protected him while he served as president no longer protects him against this prosecution.”

On the question of executive immunity, the Supreme Court “has consistently held that even a sitting President is not immune from responding to criminal subpoenas issued by state and federal prosecutors,” the appeals court found, noting the question that was not only resolved in the cases of United States v. Nixon and, more than a century earlier, in United States v. Burr, but was also established in Trump v. Vance in 2020.

According to the Mar-a-Lago motion, Trump is “considering additional motions with respect to which we are entitled to further discovery, including motions to suppress evidence and/or dismiss the Superseding Indictment based on prosecutorial misconduct, due process violations, unlawful disregard of President Trump’s attorney-client privilege, the Mar-a-Lago raid, and the searches of defendants’ electronic devices.”

The pending motions, as well as the upcoming resolution of special counsel Jack Smith’s attempt to use the Classified Information Procedures Act (CIPA) to limit access to classified discovery, will “impact our analysis of whether and how to pursue some defense motions,” the filing says.

According to the motion, special prosecutor Jack Smith intends to oppose the request to change the scheduling order.

Read the filing here.

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Judge rules for Trump in Mar-a-Lago advice-of-counsel motion

homesafetytechpros — Sun, 14 Jan 2024 13:59:12 +0000

Judge Aileen Cannon (left) during a Senate Judiciary Committee oversight nomination hearing on July 29, 2020 (U.S. Senate via AP). Special counsel Jack Smith (right) speaks about an indictment of former President Donald Trump, Aug. 1, 2023, at a Department of Justice office in Washington. (AP Photo/Jacquelyn Martin)

Donald Trump scored a legal win in Florida when a federal judge appointed by him rejected special prosecutor Jack Smith’s effort to force the former president to reveal a part of his legal strategy.

In November, Smith filed a motion asking U.S. District Judge Aileen Cannon to order Trump to tell prosecutors whether he intends to use an “advice-of-counsel” defense against allegations he improperly retained and stored classified documents.

According to Smith’s June 2023 indictment, classified documents were kept at various places at Trump’s Mar-a-Lago club, including in a bathroom, a shower, and the former president’s bedroom. At one point, Trump is alleged to have showed off the documents in July 2021 at his golf club in New Jersey.

As Smith noted in his November motion seeking the disclosure, Trump has signaled that he intends to say he was just following legal advice at the time.

“He has publicly stated he was ‘told’ he had no legal obligation to return classified documents to the Government or presidential records to the National Archives and Records Administration (‘NARA’), thereby indicating a possible defense of good faith reliance on advice of counsel,” Smith wrote in the filing. Smith provided other examples, including a nonspecific reference to having been told he was “under no obligation” to hand over certain materials “based on various legal rulings that have been made over the years.”

As recently as September, Smith noted, Trump said: “I’m allowed to have these documents, I’m allowed to take these documents, classified or not classified . . . . I’m covered by the Presidential Records Act. I’m allowed to do what I want to do. I’m allowed to have documents.”

“All of these examples raise the possibility that defendant Trump will assert an advice-of-counsel defense at trial, necessitating the notice and discovery the Government seeks here,” Smith wrote.

Cannon, who was appointed in November 2020 during the waning days of the former president’s term, disagreed.

On Friday, in a paperless order posted to the federal docket, the judge indicated that it’s too soon to require defense attorneys to tell the prosecution of their plans.

“Assuming the facts and circumstances in this case warrant an order compelling disclosure of an advice-of-counsel trial defense, the Court determines that such a request is not amenable to proper consideration at this juncture, prior to at least partial resolution of pre-trial motions, transmission to Defendants of the Special Counsel’s exhibit and witness lists, and other disclosures as may become necessary,” Cannon’s order says. “The Special Counsel’s Motion 208 is therefore denied without prejudice.”

The “without prejudice” ruling means that Smith can raise the issue down the line. Notably, however, Trump has been ordered to tell Smith by Monday whether he intends to rely on an advice-of-counsel defense in his election subversion criminal case in Washington, D.C.

Cannon’s decision to essentially grant Trump a reprieve from sharing strategy comes after her December order to unseal several documents, despite Smith’s concerns about revealing the “contours and extent” of the government’s plans to delete classified information from discovery materials.

Also Friday, Cannon — who has previously dinged Smith over his “unauthorized” wordy filings — granted a defense request to file an “oversized consolidated brief” in support of upcoming discovery motions.

“Defendants may file one consolidated classified brief and one consolidated unclassified brief, neither to exceed 120 double-spaced pages using 12-point font,” Cannon’s order specified. “The Special Counsel is granted corresponding relief for its combined responses.”

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