The federal judge overseeing the classified documents case against former President Donald Trump rejected a request from federal special prosecutor Jack Smith to force the former president to reveal a portion of his legal strategy
Several weeks ago, Mr. Smith’s team attempted to compel the former president to disclose to the prosecutors whether he intends to use an “advice-of-counsel” defense against the charges that he illegally retained and stored classified materials. It’s because, according to the special counsel, President Trump has signaled he wants to state in his case that he was merely following legal advice regarding how to deal with the classified documents post-presidency.
But on Jan. 12, U.S. District Judge Aileen Cannon issued a paperless order, posted to the docket, that it is too soon to request President Trump’s counsel to tell prosecutors what their plans entail.
“Assuming the facts and circumstances in this case warrant an order compelling disclosure of an advice-of-counsel trial defense, the Court determines that such a request is not amenable to proper consideration at this juncture, prior to at least partial resolution of pre-trial motions, transmission to Defendants of the Special Counsel’s exhibit and witness lists, and other disclosures as may become necessary,” her order stated. “The Special Counsel’s Motion 208 is therefore denied without prejudice.”
Without prejudice means that federal prosecutors can raise the same issue in the future. In his election-related case in Washington, President Trump has been ordered by the federal judge to disclose whether he will rely on advice-of-counsel defense by Monday.
Judge Cannon’s order comes weeks after a November motion filed by the Smith team, who wrote that the former president should disclose part of his legal strategy because, in part, he has “publicly stated he was ‘told’ he had no legal obligation to return classified documents to the Government or presidential records to the National Archives and Records Administration (‘NARA’), thereby indicating a possible defense of good faith reliance on advice of counsel.”
That court filing further alleged that President Trump has stated he is “under no obligation” to hand over classified materials due to “various legal rulings that have been made over the years.”
And it made reference to a Trump post on Truth Social in which he wrote, “My attorneys and representatives were cooperating fully, and very good relationships had been established. The government could have had whatever they wanted, if we had it.”
Also on Friday, Judge Cannon granted the former president a request to file an “oversized consolidated brief” to back up discovery motions in the documents case, according to a post to the docket.
“Defendants may file one consolidated classified brief and one consolidated unclassified brief, neither to exceed 120 double-spaced pages using 12-point font,” the order said. “The Special Counsel is granted corresponding relief for its combined responses.”
In late December, Judge Cannon approved a request from the special counsel’s office to require preparation of jury questions ahead of President Trump’s trial in May 2024.
A week before that, the special counsel’s team had asked Judge Cannon, a Trump appointee based in Florida, to set a deadline for early February regarding the first jury selection steps.
“Because the pre-trial publicity surrounding this case is substantial, the Government recommends a thorough jury selection process, including a written questionnaire completed by potential jurors before in-person voir dire,” Mr. Smith’s office said in a court filing.
“Accomplishing that requires enough time beforehand to allow for meaningful conferral among the parties and for the Court to consider and resolve disputes. Time may also be required to print questionnaires and conduct other processing.”
However, President Trump’s team opposed the proposal, writing a day later that his request was too early.
“Moreover, in addition to wasting the Court’s resources, this type of litigation detracts from the defendants’ efforts to review voluminous discovery and prepare motions that are crucial to the defense,” his lawyers wrote.
President Trump is also currently set for trial on March 4, 2024, in Washington on federal charges related to the 2020 presidential election. He also faces charges in Georgia accusing him of trying to subvert that state’s vote, as well as another state case in New York accusing him of falsifying business records in connection with money payments during the 2016 election.
He has also been sued in a business civil fraud case in New York, where a trial is taking place. President Trump has denied wrongdoing in all of the cases.
In the meantime, polls have shown that President Trump still has an outsized polling advantage over his Republican rivals in the 2024 presidential election, having garnered 61 percent support as of Sunday. That’s about 50 percentage points more than former U.N.