Legal analysts slam Judge Cannon's order rejecting Trump's dismissal motion as a 'temporary victory' and 'nightmare scenario' for Special Counsel Smith

 March 17, 2024

Democrat-aligned legal experts have been highly critical of every move made by U.S. District Judge Aileen Cannon, the Trump-appointed presiding judge in former President Donald Trump's classified documents criminal case.

Judge Cannon just rejected one of Trump's motions to dismiss the charges, but did so in a way that her critics say was a mistake and "nightmare scenario" that only grants Special Counsel Jack Smith a "temporary victory" and sets Trump up for a possible win with dismissal at a later stage of the proceedings, according to left-leaning Salon.

Cannon rejects Trump's motion to dismiss -- for now

A hearing was held Thursday on two motions to dismiss, including one asserting the "unconstitutional vagueness" of the Espionage Act statute under which former President Trump was charged for his retention of classified documents after leaving the White House.

Later that same day, Judge Cannon issued a two-page order rejecting that motion "without prejudice" -- meaning it can be raised again -- and wrote, "Defendant Trump seeks dismissal of Counts 1 through 32 of the Superseding Indictment on the ground that the statutory phrases 'unauthorized possession,' 'relating to the national defense,' and 'entitled to receive' appearing in 18 U.S.C. § 793(e) are unconstitutionally vague as applied under the facts presented, in violation of due process and the rule of lenity."

"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," she continued.

The judge added, "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 order sets up a "nightmare scenario" for special counsel

Former federal prosecutor Joyce Vance, in a Substack post, wrote, "The Judge’s ruling was virtually incomprehensible, even to those of us who speak “legal” as our native language," and accused Judge Cannon of writing her order in a "deliberately dumb" manner.

"The good news here is temporary. It’s what I’d call an ugly win for the government," she continued. "The Judge dismissed the vagueness argument -- but just for today. 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."

"If the Judge had ruled against the government today, the Special Counsel could have appealed. But that’s not the case if, after today’s ruling in the government’s favor, she permits Trump to resurrect the motion at trial," Vance wrote. "She could grant the motion to dismiss the case then and at that point, with very rare exceptions (that the Judge would be in a position to prevent), the 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," she added. "That’s the nightmare scenario here."

Cannon's order only a "temporary victory" for special counsel

Over on MSNBC's "Morning Joe," legal analyst Lisa Rubin accused Judge Cannon of taking "a bunch of swipes at the special counsel" with the parsed "language" in her brief order that only temporarily rejected the dismissal motion and "kicked the can down the road" to be raised again at a later date.

"She didn’t give Donald Trump what he wanted," Rubin said of the judge. "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."

Later, on host Joy Reid's MSNBC show, Florida prosecutor Dave Aronberg said of Cannon's order, "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," Aronberg added. "So, it's a temporary victory -- a victory for now."

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