The Darkest Timeline for the Trump Espionage Act Case

Judge Cannon could dismiss without the possibility of appeal

I have read the indictment of former President Donald Trump for 31 violations of the Espionage Act and assorted other crimes. I believe that the indictment lays out a compelling case that FPOTUS is guilty of significant felonies. I believe that if FPOTUS is convicted, the Sentencing Guidelines would call for a sentence longer than his life expectancy.

Notwithstanding all of that, I am very afraid that Judge Aileen Cannon will use her power to tank the case, without any possibility of successful appeal.

For those who have the stomach to read how this could happen, I lay it out below.

• THE INDICTMENT IS PERSUASIVE

On June 8, 2023, the grand jury for the Southern District of Florida returned an indictment against Donald Trump and his valet, Waltine Nauta. Trump was indicted on 37 counts:

31 Counts of violation of the Espionage Act (18 USC Section 793(e)),

1 count of conspiracy to obstruct justice (18 USC Section 1512(k)),

1 count of withholding a document or record (18 USC Section 1512(b)(2)(A)),

1 count of corruptly concealing a document or record (18 USC Section 1512(c)(1)),

1 count of concealing a document in a Federal Investigation (18 USC Section 1519),

1 count of scheme to conceal (18 USC Section 1001(a)(1)), and

2 counts of false statements and representations to federal officers (18 USC Section 1001(a)(2)).

The indictment lays out extensive evidence in support of each of these charges, including (a) transcripts of recordings of Donald Trump admitting that he knew that the documents that he was showing to journalists were classified and that he did not declassify them during his presidency, (b) pictures that were texted by Mr. Nauta showing documents with Top Secret legends spilled out on the floor of the storage room at Mar-a-Lago, and (c) extensive contemporaneous notes from, among others, Trump’s attorneys showing that he directed the criminal failure to return the classified documents in his possession.

• EVEN FORMER TRUMP CABINET SECRETARIES HAVE ADMITTED THAT THE CASE AGAINST HIM IS STRONG

In the last week, two of Donald Trump’s cabinet secretaries have reacted in horror to the facts laid out in the indictment: former Attorney General William Barr and former Secretary of Defense Mark Esper.

• JUDGE CANNON TRIED TO THWART THE INVESTIGATION INTO TRUMP

For those who do not remember, immediately after the FBI searched Donald Trump’s residence and office at Mar-A-Lago last year pursuant to a search warrant, Trump’s attorneys filed a civil case in the Southern District of Florida seeking to stop the investigation. Despite the fact that the case was frivolous, Judge Aileen Cannon granted Trump relief and set up an extensive proceeding under a Special Master to review Trump’s claims.

• THE ELEVENTH CIRCUIT REVERSE JUDGE CANNON’S AWFUL RULINGS

In its ruling overturning Judge Aileen Cannon’s injunction—with regard to the approximately 100 documents bearing classified markings seized from former President Donald Trump’s Mar-A-Lago residence—the 11th Circuit did not merely overrule Judge Cannon, it went out of its way to detail the many ways in which Judge Cannon had fundamentally misstated the law.

I encapsulated it all for the Daily Beast last year here.

• JUDGE CANNON RANDOMLY WAS ASSIGNED THE INDICTMENT

When the grand jury returned the indictment against Trump and Nauta, it was randomly assigned to Judge Cannon. The odds of her being assigned to a case that was filed in the Southern District of Florida in the West Palm Beach division was roughly 20%.

• UNDER FEDERAL RULE OF CRIMINAL PROCEDURE 29, JUDGE CANNON COULD DISMISS THE CASE AFTER THE GOVERNMENT RESTS

Every federal criminal trial is governed by the Federal Rules of Criminal Procedure. It is standard operating procedure for the defendant(s) to move pursuant to Rule 29 for an acquittal at the time that the government rests its case. For each count where the defendant seeks a Rule 29 acquittal, the motion contends that the government failed to present evidence on one or more elements of each of that count.

In over 25 years as a federal practitioner (including 3 years as a federal prosecutor), I have seen hundreds of Rule 29 motions. Ordinarily, the Court either immediately denies the motion or (if the Court thinks that there is any chance that the motion should be granted) the Court “reserves” ruling on the motion until after the jury has returned its verdict. If the Court reserves ruling, the jury may convict or acquit. If the jury acquits, the case is over and the Court never has to rule on the motion. If the jury convicts, the Court then has to rule on the motion. If the Court grants the motion after the jury convicts, that ruling can be appealed and the conviction can be re-instated.

BUT, Judge Cannon does not have to reserve on the Rule 29 motion. She could rule on it right away and grant it. If she grants the motion without allowing the case to go to the jury, the case is over and there is nothing that the DOJ or a higher court can do about it, as I set forth below. It would not matter that any such ruling would be completely wrong, because it would be unreviewable.

• UNDER CONTROLLING SUPREME COURT PRECEDENT, EVEN IF JUDGE CANNON WERE DEAD WRONG IN DISMISSING, SHE COULD NOT BE REVERSED

In a 1977 criminal case of United States v. Martin Linen Supply Company, the Supreme Court held that if a trial court granted a Rule 29 acquittal without the jury returning a verdict, that acquittal could not be reviewed on appeal. In Martin Linen, the jury was “hopelessly deadlocked”, so the trial court granted a mistrial. The trial court then granted a Rule 29 motion for acquittal, to prevent a re-trial. The DOJ appealed to the Fifth Circuit Court of Appeals, which held that it could not hear the appeal, because it was barred by the Double Jeopardy Clause of the Fifth Amendment: “No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb.”

The Supreme Court unanimously affirmed, holding “We thus conclude that judgments under Rule 29 are to be treated uniformly and, accordingly, the Double Jeopardy Clause bars appeal from an acquittal entered under Rule 29(c) after a jury mistrial no less than under Rule 29(a) or (b).”

CONCLUSION

If Judge Cannon decides to put the well-being of Donald Trump above her oath to the Constitution, she has the unique and unreviewable ability to acquit. So long as she waits until the precise moment when the Government rests, she can do enormous damage to the rule of law.