Donald Trump (left) speaks at a Super Tuesday election night party in March at Mar-a-Lago (AP Photo/Evan Vucci), (right) Judge Aileen M. Cannon speaks remotely during a Senate Judiciary Committee oversight nomination hearing (U.S. Senate via AP).
In another mixed-bag ruling for special counsel Jack Smith and Donald Trump’s defense, Judge Aileen Cannon has found the former president’s complaints about Mar-a-Lago warrant “omissions” didn’t “meaningfully challenge” probable cause. At the same time, the judge called for an evidentiary hearing to examine “afresh” whether a Washington, D.C., federal court properly applied the “crime-fraud exception” to hand a key witness and ex-Trump lawyer’s notes to prosecutors.
Two days after hearing from the prosecution and defense in court, Cannon dropped an 11-page order on Thursday that began by denying Trump an opportunity to accuse the feds, at what is known as a Franks hearing, of lying by omission to obtain the Mar-a-Lago warrant.
“Defendant Trump has not made the requisite ‘substantial preliminary showing’ to warrant a Franks hearing. He identifies four omissions in the warrant, but none of the omitted information—even if added to the affidavit in support of the warrant—would have defeated a finding of probable cause,” wrote the judge, a Trump appointee.
At the end of the last line, Cannon added a footnote making clear that Trump’s “Motion for Relief Relating to the Mar-a-Lago Raid” did not “meaningfully challenge the presence of probable cause in the affidavit.”
But immediately ruling on the other part of Trump’s motion, the subject of the sealed portion of Tuesday’s hearing, wasn’t in the cards.
Trump’s defense lawyers have asserted that D.C.-based U.S. District Judge Beryl Howell’s March 2023 ruling wrongly applied the “crime-fraud exception” to attorney-client privilege, meaning that, in their view, former Trump lawyer Evan Corcoran’s notes must stay out of evidence.
If Corcoran’s notes were to be stricken from evidence, it would be an exceedingly damaging blow to the special counsel, since the accounts of the lawyer who was compelled to testify before a grand jury are central to the government’s case that Trump willfully retained national defense information at Mar-a-Lago, conspired with co-defendants Walt Nauta, his valet, and property manager Carlos De Oliveira to obstruct the recovery of classified documents, and took steps to conceal those records by lying to his own lawyers that the documents at issue had been returned.
Those notes and voice memos, as ABC News noted this week, include Corcoran recounting Trump saying things like the Hillary Clinton lawyer who “deleted all of her emails” did “a great job”; “what happens if we just don’t respond at all or don’t play ball with them?” (the feds); and wouldn’t it “better if we just told them we don’t have anything here.”
More Law&Crime coverage: Jack Smith brings receipts of vile threats against judges and prosecutors in Trump cases, tells Cannon former president fundraised off of lies about FBI
According to Judge Cannon, despite the special counsel “vigorously” arguing against it, Trump’s “Motion to Suppress for Insufficient Particularity and Unlawful Piercing of Attorney-Client Privilege” claims merit another hearing.
“First, although Defendant Trump acknowledges that the grand jury’s return of the Superseding Indictment qualifies as ‘prima facie’ evidence for purposes of the first prong of the crime-fraud test,” Cannon wrote, “he makes clear that he disputes important factual findings reached by the United States District Court for the District of Columbia in the grand jury proceeding as relates to the second prong of that inquiry (whether the attorney’s assistance was obtained in furtherance of the criminal or fraudulent activity or was closely related to it).”
Calling it her “obligation […] to make factual findings afresh on the crime-fraud issue,” Cannon called for an evidentiary suppression hearing. She also bristled at length over the Smith’s concerns that the hearing will be a waste of time, only continue serial delays in the case, and result in a “mini-trial” of sorts.
Read the order here.
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