Of all of the legal cases currently being piled up against Donald Trump in the Democrats’ ongoing lawfare efforts against him, the one I’ve probably found the most troubling is the allegation of mishandling classified documents. It’s a fairly serious charge and it’s one of the few cases against him that does at least appear to involve the possibility of an actual crime being committed (more on that in a moment) and physical evidence to support the claim. It has thus far sounded as if the court was taking it seriously as well. But now, a possible ray of hope has emerged for the former president. U.S. District Judge Aileen Cannon has signaled an openness to the line of defense being claimed by Trump’s attorneys, asking both the prosecution and the defense to propose jury instructions that would take those claims into account. Both sides are expected to respond to the request this week. (Reuters)
A federal judge overseeing the criminal case that accuses Donald Trump of mishandling classified documents has signaled an openness to the former U.S. president’s defense claims, in a sign that prosecutors might face a difficult road ahead.
U.S. District Judge Aileen Cannon, who was nominated to the bench by Trump, has asked Trump and prosecutors to propose jury instructions based on two legal scenarios that favor a claim from Trump that national security lawyers said have little relevance to the charges.
Trump and Special Counsel Jack Smith, who brought the case, face a Tuesday deadline to respond to the judge’s order.
It’s worth pointing out that Cannon is a Trump appointee, a fact that the media harps on endlessly. But any perceived loyalty she might feel to Donald Trump has not moved her to dismiss the case as his attorneys have requested. But she does appear to be leaving the door open to a potential scenario where the defense could gain an advantage.
That still may be a long shot, however. Trump’s attorneys have been attempting two avenues to demonstrate that he shouldn’t be prosecuted. One was that the President is the ultimate arbiter of what documents are or are not classified. That’s true, but there is a process to go through when declassifying documents and there is no evidence that Trump took those steps while he was in office. The second is a claim under a 1978 law that allows former presidents to keep certain records if they consider them to be their personal property and they have no connection to their official duties. That’s a stretch as well since at least some of the records reportedly involve military intelligence and would not be considered personal.
Of course, all of this hemming and hawing completely ignores the potential classified document cases against Hillary Clinton and Joe Biden (among others) which were arguably far more egregious than whatever Trump may have done, with neither of them being prosecuted. But that’s the nature of “prosecutorial discretion.” The government can go after anyone they wish while ignoring the crimes of others. It was FBI Director James Comey himself who said in 2016 that “no reasonable prosecutor” would bring a case against Hillary Clinton over her massive mishandling of classified material and obvious attempts to cover up her crimes. And yet Trump is on the verge of being put before a jury for far less. Joe Biden is known to have removed hundreds of boxes containing classified material long before he gained the ability to determine classification issues when he became president. Nobody has so much as suggested bringing charges against him.
Trump’s best bet at this point might be to try to delay the jury selection and trial as long as possible, hopefully until after the election. Then, assuming he wins, perhaps he can pardon himself out of this mess. Perhaps the court will look favorably on any motions that might result in further delays.