Judge orders hearing to consider throwing out key evidence in Trump classified documents case

The federal judge overseeing Donald Trump’s classified documents case ordered an additional hearing Thursday to determine whether prosecutors improperly used evidence protected by attorney-client privilege to secure their indictment against the former president.

In an 11-page decision issued Thursday, Judge Aileen Cannon wrote that an additional hearing was necessary to resolve “relevant factual disputes” related to key evidence in the case.

As ABC News reported, prosecutors relied on notes from Trump’s former lead attorney, Evan Corcoran, to support their allegations that the former president obstructed justice by withholding classified documents from investigators.

MORE: Trump expressed concern that returning classified documents after subpoena could lead to criminal prosecution, sealed memos show

After a federal judge in Washington, D.C., ruled last year that the notes were not protected by attorney-client privilege because Trump had used his lawyer to commit a crime, defense attorneys asked Cannon to reconsider whether the evidence should be thrown out.

Judge Cannon wrote in Thursday’s order that she would set a date for the hearing in a separate order.

The judge heard the defense’s arguments on the motion to suppress the evidence in a closed hearing Tuesday morning. In Thursday’s order, she wrote that she had taken into account prosecutors’ concerns that the hearing could “devolve into a mini-trial” — but she said she would impose “reasonable limitations” on the hearing, which could include testimony.

“There is a difference between a ‘mini-trial’ that wastes resources and creates delays, on the one hand, and an evidentiary hearing intended to resolve the factual and legal issues contested in a pretrial motion to suppress,” Cannon wrote.

Cannon said she also plans to review whether an annex to the FBI search warrant for the August 2022 raid on Trump’s Mar-a-Lago estate contained “ambiguities” about what evidence was authorized to be seized. Defense attorneys have argued that terms such as “presidential records” and “national defense information” were too vague for the FBI agents who executed the warrant.

Handing prosecutors a small victory, Cannon also denied a request for a hearing to determine whether the Mar-a-Lago search warrant application contained “material misrepresentations or omissions.”

Defense attorneys argued Tuesday that the warrant application omitted key details, including that Trump did not need a security clearance to view classified documents, that an FBI supervisor disagreed about whether a search warrant was necessary and the failure to define the term “personnel records.”

“(The defense) identifies four omissions in the warrant, but none of the omitted information – even if added to the affidavit supporting the warrant – could have thwarted a finding of probable cause,” Cannon wrote.

In a separate order issued Thursday, Cannon set a July 5 deadline for both sides to submit additional briefs regarding a limited gag order that prosecutors are seeking against Trump.

Prosecutors asked the judge to bar the former president from making public statements that would signal a “substantial, imminent and foreseeable danger” to law enforcement officers involved in the case.

MORE: Prosecutors say gag order needed to prevent Trump from inviting law enforcement to commit ‘violent act’

The delayed decision, which follows a hearing on the matter Monday, ensures that Trump will participate in Thursday’s presidential debate without any restrictions on his ability to comment on the Mar-a-Lago research.

On Tuesday, the judge overseeing Trump’s criminal case in New York also lifted part of the limited gag order imposed on Trump in the case, allowing him to make statements about witnesses and the jury at the trial.

In the documents case, special counsel Jack Smith asked Cannon to modify Trump’s release conditions to limit his public statements about the search, after a month of escalating rhetoric from the former president. Smith argued that Trump’s statements about the search falsely suggested that law enforcement officers were “complicit in a conspiracy to assassinate him.”

At Monday’s hearing, Cannon questioned prosecutors about the connection between Trump’s rhetoric and the conduct of his supporters, while raising concerns about the constitutionality of the request.

Last year, Trump pleaded not guilty to 40 criminal counts related to his handling of classified documents after leaving the White House, after prosecutors said he repeatedly refused to return hundreds of documents and took steps to thwart government efforts to retrieve the materials.

Trump has denied all accusations and denounced the investigation as a political witch hunt.

Judge orders hearing to consider throwing out key evidence in Trump classified documents case