Trump’s lawyers asked Cannon for a so-called Franks hearing, an opportunity to show the government intentionally misled a magistrate judge when seeking a warrant to search classified material at Trump’s Mar-a-Lago, Florida home and private club. A year after he took office.
Defense lawyers, among others, argued that Justice Department officials should have written in the affidavit that sitting presidents are unique because they do not need security clearances to view sensitive government information. Cannon became suspicious.
“But he’s post-presidential,” he told Trump lawyer Emil Poe, adding that he didn’t see how the agent was wrong in this instance. “And I find it hard to see what language is needed.”
If Canon Franks agrees to a trial and rules in favor of the defense after that trial, he could throw out the evidence investigators gathered when they executed the search warrant — much of the evidence in the classified documents case.
The bar to allowing such an inquiry is high. Investigators generally must show substantial evidence that the information was intentionally false before judges will grant a finding.
Trump, the former president and Republican nominee for this year’s election, faces 40 counts of national security violations, including willfully withholding classified information and obstructing government efforts to retrieve it.
In addition to suggesting the government falsified information, his attorneys on Tuesday argued that the Mar-a-Lago search was politically motivated and too extensive, resulting in agents seizing personal items stored with classified material — something he has pushed into the bombshell and conspiracy. Terms on Social Media and Elsewhere.
The session held three days of hearings in Cannon’s courtroom. In the morning, he held a closed-door hearing on Trump’s efforts to suppress audio memos obtained by investigators from Evan Corcoran, one of Trump’s former lawyers. Prosecutors argued that the audio notes were exempt from the attorney-client privilege because of the crime-fraud exception, which states that communications made in furtherance of a crime may not be protected.
The judge also heard Trump’s motion to dismiss the entire case, which he argued had unconstitutional funding and the appointment of special counsel Jack Smith. He heard arguments on lawyers’ request for new restrictions on Trump’s public statements, barring him from publicly attacking law enforcement officials.
He did not issue rulings from the bench on any motion, meaning written decisions could come at any time.
On Tuesday, Trump’s team argued that Mar-a-Lago was so large that investigators should have conducted a much narrower search instead of the residences of former first lady Melania Trump and their son.
Cannon seemed interested in the government’s justification for searching Barron Trump’s room, but noted that because investigators did not take any items from the room, it was unclear what remedies Trump might have sought.
Trump and his family were not home at the time of the raid.
“Do you agree that paper work is the kind of thing that can be anywhere?” Cannon asked Poe.
Prosecutors backed the warrant and searched rooms Trump had access to — avoiding, for example, rooms where guests were staying. They said they had evidence that boxes containing important information had been moved when the government came searching, and may have been in several places on the property, including her son’s room.
“At one point, the boxes were in the bathroom in the bathroom,” Assistant Special Counsel David Harbaugh told Cannon.
Harbaugh said it was absurd for Trump’s team to say the affidavit seeking the search warrant was misleading when investigators allowed Trump’s lawyer to attach a letter to the application.
“Mr. Trump has had an extraordinary opportunity, very rare, unprecedented in my experience,” Harbaugh said, “to say what he wants … to a search warrant submitted to a magistrate.”
The trial ended on a contentious note as frustration seemed to boil over in defense arguments by prosecutors. He complained that Harbaugh was “attempting to hijack the investigation” by Bowe, but Cannon, who had tangled with Harbaugh a day earlier, said he had nothing to worry about.
“There was no kidnapping,” Cannon said of the investigation. “It’s going to end.”
“It’s not fair,” Harbaugh said before being cut off.
