Ahead of Monday’s hearing on special counsel Jack Smith’s attempt to bar Donald Trump from making dangerous statements about law enforcement, I wrote that U.S. District Judge Aileen Cannon would have concerns about the First Amendment and the connection between Trump’s statements and threats to agents in this case.
That’s reportedly what happened, with the judge not only raising such concerns but chastising the prosecution’s tone in pressing its argument. Cannon hasn’t ruled yet, but we shouldn’t expect her to impose restrictions on Trump’s statements, as Smith requested.
Of course, this is just one of many issues lingering in the case, as Cannon holds yet another hearing Tuesday for the third day in a row. This latest one deals with the Mar-a-Lago raid and attorney-client privilege, as Trump challenges the search warrant and the use of evidence from former Trump lawyer Evan Corcoran, whose notes against Trump could be damning evidence against him at trial — if one ever comes. With many unresolved issues, no trial date set, and a looming election whose outcome could end the case if Trump wins, there’s no guarantee that one will happen.
Among those many unresolved issues is Trump’s claim that the government destroyed evidence — a legal claim called “spoliation.” On Monday, Smith’s opposition filing noted that Trump “does not offer the Court a single case at any level, at any time, from anywhere in the country, in which the disruption of the precise order of documents gathered in the execution of a search warrant provided support for a spoliation claim.” Smith added:
There does not appear to be any decision — and Trump certainly has not cited one — in which a court has ever found a due process violation under circumstances remotely similar to those here, where no physical evidence has been destroyed and the defendant’s claim is based on the failure to preserve the precise ordering of documents within a container.
Attempting to head off yet another hearing followed by a leisurely decision, the government concluded its opposition by urging the judge to deny Trump’s spoliation motion “without a hearing.” But given her actions so far in the case, Cannon might view the unprecedented nature of Trump’s claim as a reason to do so, even if she eventually rules against him in the case that may never see trial anyway. Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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