OPINION: This article may contain commentary which reflects the author's opinion.
Though she struck one “prejudicial” paragraph alleging the former president showed off a “classified map,” the judge in the Mar-a-Lago case ruled largely in favor of the special counsel this week, upholding Donald Trump’s Espionage Act indictment.
U.S. District Judge Aileen Cannon, a Trump appointee, also expressed her “concerns” about Jack Smith’s approach in this case of “significant public interest.” Last but not least, the defense promptly submitted a second move to dismiss the case, this time on different grounds and with the argument that the “prosecution team destroyed exculpatory evidence.”
The indictment against Trump, his valet Walt Nauta, and Mar-a-Lago property manager Carlos De Oliveira was not dismissed by Cannon, despite the defense’s joint argument that the charging document was sufficiently flawed to be dismissed, Law and Crime reported.
Cannon ruled that the “identified deficiencies, even if generating some arguable confusion, are either permitted by law, raise evidentiary challenges not appropriate for disposition at this juncture, and/or do not require dismissal even if technically deficient, so long as the jury is instructed appropriately and presented with adequate verdict forms as to each Defendants’ alleged conduct.”
Nevertheless, the judge objected to paragraph 36 of the indictment, finding it to be improper, and stated that Trump is attempting to obstruct access to “potentially privileged information contained in the Superseding Indictment.”
“Defendants also forcefully challenge the Superseding Indictment’s inclusion of substantial information characterized by Defendant Trump as protected by the attorney-client and/or work product privileges,” a footnote said. “Because that issue is the subject of a pending motion to suppress, the Court elects to reserve ruling on the potential striking of those allegations.”
According to paragraph 36 of the superseding indictment, Trump displayed a “classified map” to a representative of his political action committee at his New Jersey club in 2021, a few months after taking office, Law and Crime noted.
It appeared that he was criticizing President Joe Biden for ordering the withdrawal of American forces from Afghanistan, which resulted in the deaths of 13 American service members in a suicide bombing attack in Kabul while evacuation efforts were in progress.
“During the meeting, TRUMP commented that an ongoing military operation in Country B was not going well. TRUMP showed the PAC Representative a classified map of Country B and told the PAC Representative that he should not be showing the map to the PAC Representative and to not get too close,” the indictment had said. “The PAC Representative did not have a security clearance or any need-to-know classified information about the military operation.”
Cannon decided that the paragraph should not have been included in the indictment.
Though she expressed “concerns” about the special counsel’s “decision to include in a charging document an extensive narrative account of his or her view of the facts, especially in cases of significant public interest,” she did not hand the defense a big win.
“Notwithstanding these concerns, given the rigorous standard for applying Rule 7(d), the Court exercises its discretion, with one exception below, not to order the ‘striking’ of allegations requested by Defendants, at least not as this stage, because Defendants have not clearly shown that the challenged allegations are flatly irrelevant or prejudicial,” the judge wrote.
The FBI searched Mar-a-Lago in August 2022, and Trump’s defense team demanded on Monday that Cannon “suppress all evidence seized” and destroy “important exculpatory evidence relating to the locations of the allegedly classified documents at issue” to release images of classified documents that were strewn all over the floor.
The motion contended that Jack Smith is supporting President Biden’s “election-interference mission” and accused him of spoliating evidence and violating Trump’s due process rights:
The prosecution team destroyed exculpatory evidence supporting one of the most basic defenses available to President Trump in response to the politically motivated charges in this case. The Special Counsel’s Office has wrongfully alleged that President Trump was aware of the contents of boxes in August 2022, where those boxes were packed by others in the White House and moved to Florida in January 2021. The fact that the allegedly classified documents were buried in boxes and comingled with President Trump’s personal effects from his first term in office strongly supported the defense argument that he lacked knowledge and culpable criminal intent with respect to the documents at issue. Any proximity between allegedly classified documents and other dated materials from years before the move, such as letters and newspapers, would have further strengthened this argument. The prosecution team’s instructions to agents who executed the raid essentially acknowledged these propositions, and directed the agents to take care to document the location of both seized items and potentially privileged materials.
However, the agents disregarded those instructions. The government was more interested in staging—and leaking—manipulated photographs to the press than preserving key exculpatory evidence that has now been lost forever.
