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The federal judge overseeing the impeachment of Donald Trump over the retention of classified documents ruled Thursday that she will schedule a hearing to consider the exclusion of key evidence that forms the backbone of the obstruction of justice portion of the case against the former president.
U.S. District Judge Eileen Cannon said she will hold an evidentiary hearing to review another judge’s decision to allow prosecutors to access damaging notes made by Trump’s former lawyer Evan Corcoran under the so-called criminal fraud exception.
The criminal fraud exception allows prosecutors to see confidential and protected communications between a defendant and an attorney if their legal advice is used in furtherance of a crime.
The new hearing, which still has no date, will see Trump’s lawyers undo a major victory for prosecutors when they gained access to evidence showing Trump’s reluctance to comply with a subpoena requiring the return of classified documents in his possession.
If Cannon excludes even a fraction of the evidence, it could gut some of the most damning evidence against Trump. Even if he keeps it intact, it will take weeks to resolve, thus playing into Trump’s strategy of delaying the case as long as possible.
The obstruction portion of the case centers on Trump’s failure to fully comply with a May 11, 2022, grand jury subpoena demanding the return of all classified documents in his possession, months before the FBI seized 101 classified documents in a search Mar-a-Lago.
Corcoran’s memos – the contents of which were first reported by the Guardian last year – were instrumental in bolstering the allegation that Trump conspired with Trump valet Walt Nauta and property manager Carlos De Oliveira to play a “shell game” in hiding boxes of classified documents so that Corcoran could not secure their return.
The indictment cites the memos as saying Trump responded, “Well, what if we just don’t respond at all or play along with them?” and “Wouldn’t it be better to just tell them that we have nothing here?” and “Well, look, wouldn’t it be better if there were no papers?”
After Corcoran found 38 classified documents in the warehouse, his memos recount Trump asking him, “Did you find anything? … Is it bad? Okay?” and makes a sort of plucking motion, suggesting “if there’s something really bad in there, like, rip it out.”
Cannon’s decision to reopen litigation over the felony fraud exception comes after a sealed hearing Tuesday in federal district court in Fort Pierce. Floridawhere Trump’s lawyers are understood to have argued that the criminal fraud exception should not have applied at all.
During the hearing, prosecutors argued that holding an evidentiary hearing to review the notes again to see if the criminal fraud exception applied would amount to a “mini-trial,” according to the ruling.
But Cannon appears to have been irritated by this argument, noting in mocking language that there is a difference between a “resource-wasting and delay-inducing ‘mini-trial'” and a hearing “aimed at resolving contested factual and legal issues”.
The decision is consistent with Cannon’s tendency to want to make his own decisions on matters that have been heard in other courts during the criminal investigation.
The criminal fraud exception to the notes, for example, was first decided by Beryl Howell, then the chief federal judge in the District of Columbia, and upheld by the U.S. Court of Appeals for the District of Columbia Circuit in March 2022 after Trump and Corcoran split their disputes. of the rulers.
Last Friday, Cannon held a hearing to discuss whether special counsel Jack Smith was appointed illegally — even though multiple federal courts dating back to the Watergate scandal have ruled that the attorney general can appoint special prosecutors.
And while her latest decision rejected Trump’s request to withhold classified documents, FBI seized at Mar-a-Lago in August 2022 because of alleged flaws in the warrant, Cannon allowed a narrower legal challenge to the search to proceed.
Cannon wrote that he wants to further investigate whether the FBI agents who executed the search warrant were given definitions of terms such as “presidential records” or “national defense information” to identify what the warrant authorized them to seize.
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