Legal analysis reveals Judge Cannon's rejection of Trump's dismissal motion could later be reversed and result in loss for Special Counsel Smith

 March 19, 2024

U.S. District Judge Aileen Cannon, who is presiding over former President Donald Trump's classified documents case, recently rejected one of Trump's motions for dismissal which argued that the language of the federal Espionage Act statute under which he was criminally charged is "unconstitutionally vague."

However, while that rejection appears at first glance to be an immediate victory for Special Counsel Jack Smith, legal analysis of Cannon's ruling suggests that it could lead to an eventual ultimate victory for Trump and a dismissal of the charges later in the proceedings, according to The New York Sun.

That is because Cannon ruled against Trump's motion to dismiss "without prejudice," meaning he can refile it and she can potentially rule in favor of it at a later date, perhaps even at a point when Smith cannot appeal that decision or refile the charges because of the Constitution's prohibition against "double jeopardy," or being tried twice for the same alleged crime.

Trump's motion to dismiss for "unconstitutional vagueness" rejected, albeit "without prejudice"

Among former President Trump's several motions to dismiss the federal criminal charges against him in the classified documents case was one that challenged the purported "unconstitutional vagueness" of certain terms and phrases in the underlying statute, 18 U.S.C. § 793(e).

Per The Sun, Trump's motion argued that the disputed statute and charges that stemmed from it were unconstitutional and violated his due process rights as well as the judicial doctrine known as the "Rule of Lenity," in which cases dealing with ambiguous laws are generally decided in favor of the defendant.

In a two-page order on Thursday, Judge Cannon wrote, "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

"For that reason, rather than prematurely decide now whether application of 18 U.S.C. § 793(e) in these circumstances yields unsalvageable vagueness despite the asserted judicial glosses, the Court elects to deny the Motion without prejudice, to be raised as appropriate in connection with jury-instruction briefing and/or other appropriate motions."

Cannon's ruling presents possible "nightmare scenario" for Special Counsel Smith

According to left-leaning Salon, multiple Democrat-aligned legal experts were infuriated and perplexed by Judge Cannon's "incomprehensible" ruling that potentially creates a "nightmare scenario" for Special Counsel Smith in that the charges he pressed against former President Trump could be dismissed at a later point at which he would have no recourse available to challenge that decision.

Most prominent among the critics was former federal prosecutor Joyce Vance, who wrote in a Substack post, "The Judge’s ruling was virtually incomprehensible, even to those of us who speak 'legal' as our native language," and further argued that Cannon was being "deliberately dumb" when she wrote it.

"The good news here is temporary. It’s what I’d call an ugly win for the government. The Judge dismissed the vagueness argument -- but just for today," she continued. "She did it 'without prejudice,' which means that Trump’s lawyers could raise the argument again later in the case. In fact, the Judge seemed to do just that in her order, essentially inviting the defense to raise the argument again at trial."

Vance further explained that if the motion is refiled and Cannon rules to dismiss the charges once the trial has started, "(T)he government can’t appeal. That’s because once a jury has been empaneled, double jeopardy 'attaches' and prevents the government from retrying the defendant on the same charges if he’s acquitted, which is what would happen if the Judge granted a motion to dismiss at that point and before a jury rendered a guilty verdict. That’s the nightmare scenario here."

Other legal analysts agree Cannon's ruling could be bad news for Smith

Salon further pointed to the separate analysis of two MSNBC legal experts, the first of which was Lisa Rubin during an appearance on the "Morning Joe" program, where she attacked Judge Cannon for allegedly taking "a bunch of swipes at the special counsel" in the language used in the order that essentially "kicked the can down the road" in terms of the dismissal motion.

"She didn’t give Donald Trump what he wanted," Rubin said. "On the other hand, she made it difficult for anyone to appeal this, and just sort of held it in abeyance. I don't think it's a victory for the special counsel's office."

Then there was Florida prosecutor Dave Aronberg, who appeared on Joy Reid's program and explained, "Although it seems like Jack Smith won today because she didn't boot the entire Espionage Act claim, she postponed her decision. She denied it without prejudice, meaning that Donald Trump can bring it up again in the middle of the trial, and if Judge Cannon agrees, in the middle of the trial, then double jeopardy attaches, and Jack Smith won't be able to appeal it to the 11th Circuit Court of Appeals and then Jack Smith is done on that claim. So, it's a temporary victory."

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