There was a hearing in the Trump documents case.
Former President Donald Trump and his lawyers are in court trying to convince a federal judge in Florida Thursday to dismiss special counsel Jack Smith's classified documents case against him.
Judge Aileen Cannon is hearing arguments on two motions filed by Trump, one that says the former president is shielded from prosecution by a federal recordkeeping law, and another that claims one of the charges presents numerous open legal questions.
It's the second hearing in as many weeks when Trump's team and prosecutors in Smith's office are facing each other in Cannon's courtroom.
The first half of the hearing addressed the Trump motion that argued the statute under which he's been charged is unconstitutionally vague.
One of Judge Cannon's main concerns seemed to be whether this motion is premature, and she pointed out that "declaring a statute unconstitutionally vague is an extraordinary step."
"Why are we having this as applied discussion now given the chance of disputed facts," she asked. She pointed out that the superseding indictment does not take the position that Trump's documents were personal, and Trump is now claiming that he had deemed them personal records before he left office.
I think what she's saying is why are we debating the law, when we can have a determination on the facts, and if the facts say the documents are indeed personal, then we do not need to rule on whether the law is unconstitutional or not.
Cannon was also fixated on the timeline of when Trump's alleged lawful retention of the documents was complete, asking whether that was on Jan. 20, 2021. She explained that a theory in the indictment is that Trump's possession of the documents was authorized while he was president, but his possession became unauthorized the moment the presidency ended. She asked Trump's attorney, "When does it become unauthorized?
Trump lawyer Emil Bove replied that charges under Statute 793 of the Espionage Act should be dismissed because the government cannot establish his lack of authorization. Trump's very removal of the records constituted an act of designating them to be personal records, he argued.
Trump's lawyers and the prosecutors for the special counsel's office argued over the meaning of "unauthorized" and how it should be applied. Judge Cannon seemed to defend the prosecution's use of dictionary definitions of the term in their motions. She asked Bove, "If I deny your motion, how would you put forward jury instructions on the definition of unauthorized?"
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In addition, he said it was clear Trump knew it was illegal to handle classified documents because of comments he has made about Hillary Clinton. While she was secretary of state, she used a private email server, and during her presidential campaign, the FBI examined whether classified information was mishandled, improperly stored or transmitted on her personal email server. The bureau found no charges were appropriate.
Note that-- the prosecution is bringing up the non-prosecution of Hillary Clinton as a reason to prosecute Trump.
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In one of several motions to dismiss filed late last month, Trump argued that the case should be tossed because as president, he had "unreviewable discretion" to make any document personal in nature. His attorneys contend that the Presidential Records Act "preclude[d] judicial review" over his recordkeeping.
"President Trump was still the President of the United States when, for example, many of the documents at issue were packed (presumably by the GSA), transported, and delivered to Mar-A-Lago," Trump's team argued in its filing. Past precedent should have prevented prosecutors from opening a criminal investigation in the first place, they said, which would also disqualify the obstruction charges he faces.
So that's CBS "News," painting the best possible case for Jack Smith.
But Julie Kelly reports the judge had some very pointed questions for Very Special Prosecutor Jack Smith. Which CBS "News" apparently did not think worth mentioning.
Things like the judge repeatedly invoking the phrase, "selective prosecution," and also noting that documents become illegal to retain when a president or vice-president leaves office.
Julie Kelly
@julie_kelly2
NEW: From FLA courthouse in Trump's classified documents case with a prediction.
Robert Hur report and testimony is the biggest elephant in the room. The term "arbitrary enforcement" used frequently by both the defense and Judge Aileen Cannon.
Cannon hammered the fact no former president or vice president has been charged under Espionage Act for taking and keeping classified records including national defense information--which represents 32 counts against Trump in Jack Smith's indictment.
Prediction: Cannon won't dismiss the case based on the motions debated today--vagueness of Espionage Act and protection under the Presidential Records Act.
But it's very likely she will dismiss the case based on selective prosecution, a motion still pending before her.
Julie Kelly
@julie_kelly2
Without saying so directly, what Judge Cannon suggested is that any former president or vice president who took unauthorized records and failed to return them to the proper authority committed a crime the day he left office.
Also important to note that Judge Cannon, who is pretty measured in comparison to most judges, made these points in a rather heated fashion. She is very aware of the double standard at play in the non-prosecution of Joe Biden.
In more Coupist Lawfare news, Soros DA Alvin Bragg's insane case against Trump in basketcase shithole New York City will be delayed because Bragg says he's discovered 73,000 pages of new documents and he has to search them for MOAR CRIMES.
The trial was slated for March 25 but will now be delayed.
Ed Morrissey wonders why Bragg would attempt to delay the trial:
This is curious. The new documents came from the DoJ, but this is an old case for them. They looked into the alleged hush-money payments as a potential crime a couple of years ago and declined to pursue the campaign-finance case, for good reason. They tried John Edwards in almost exactly the same situation and got an embarrassing loss for their trouble.
It doesn't sound credible that Bragg has only now gotten a look at these documents.