Judge Aileen Cannon Hands Jack Smith a Win on Motion to Dismiss – but Hands Trump One, Too


Alright, friends, buckle up. We’re about to discuss one of those procedural in-the-weeds-ish decisions handed down Monday by Judge Aileen Cannon in the classified documents case against former President Donald Trump. 


The crux of the ruling is that Cannon denied Trump’s (and co-defendant Walt Nauta’s) motion to dismiss Special Counsel Jack Smith’s Superseding Indictment of the two on the basis of pleading deficiencies. (Before we go any further, note that there are multiple motions to dismiss in the matter, a couple of which remain pending — this one just has to do with whether the Superseding Indictment is properly pleaded.) 

On the other hand, she did grant the defendants’ motion to strike one paragraph of the indictment, which we’ll delve into momentarily. 

Here’s a brief overview of Monday’s ruling: 

Trump’s legal team had sought to throw out more than a half-dozen of the 41 counts in the indictment, which accuses the former commander-in-chief of illegally hoarding classified documents from his presidency and conspiring with others to conceal sensitive files from the federal government. 

The defendants had challenged counts related to obstruction and false statements, but U.S. District Judge Aileen Cannon issued an order Monday saying that “the identified deficiencies, even if generating some arguable confusion, are either permitted by law, raise evidentiary challenges not appropriate for disposition at this juncture, and/or do not require dismissal even if technically deficient, so long as the jury is instructed appropriately and presented with adequate verdict forms as to each Defendants’ alleged conduct.”


The full 14-page Order can be viewed below, but in a nutshell, Cannon determined that the government’s pleading was good enough to make it past a motion to dismiss. That doesn’t mean it cannot be challenged later via a motion for summary judgment or at trial. It just means that on the face of the pleadings, the government cleared the bar, even if not in a particularly graceful fashion. 


11th Circuit Says It’s Over the ‘Orchestrated Complaints’ Against Judge Cannon

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In addition to seeking the dismissal of certain counts, Trump and Nauta sought to have portions of the indictment stricken for including “substantive uncharged offense allegations.” Basically, their argument was the indictment included added allegations of bad things done by Trump that don’t actually charge a crime — they’re there just to make him out to be a bad hombre. Cannon agreed that “much of the language in the Superseding Indictment is legally unnecessary to serve the function of an indictment” but declined to strike all of the material raised by the defendants, except with respect to paragraph 36, which alleges that in August or September 2021, Trump showed a classified map to a PAC representative at The Bedminster Club and told the representative he shouldn’t be showing it to the representative, who did not have security clearance. 


Cannon also reserved her ruling on several other paragraphs of the indictment having to do with information ostensibly protected by attorney-client and/or work product privilege, noting that since that issue is also the subject of a pending motion to suppress, she would hold off on it for the time being. 

As noted above, there remain other motions to dismiss pending — several of which are being taken up later in June.

READ MORE: Judge Cannon Set Multiple Hearings on Constitutional Issues and the Anti-Trump Brigade Is Big Mad

But I did want to take a moment to note something interesting from Monday’s ruling and tip my hat to Judge Cannon if she just did what I think she did here. See if any of the language she used here strikes a chord of familiarity (emphasis mine): 

On this issue of duplicity, the Court agrees with the Special Counsel that the charged conspiracy satisfactorily charges Defendants with one conspiracy to commit three substantive crimes, each tied to slightly different subsection of 18 U.S.C. § 1512. This is a permissible form of pleading a single conspiracy with multiple objects, the net effect of which is to require, for conviction, unanimous agreement on which of the crime(s) Defendants allegedly conspired to commit. See 11th Cir. Instruction O13.2. Any challenges to the sufficiency of proof as to any particular Defendant or to the temporal reach of the conspiracy can be developed and raised at trial [ECF No. 352 p. 11; ECF No. 556 p. 3].

In this way, neither count charges more than one crime—although given the pleading format, there likely will be a need for clear prompts (and separate verdict forms) requiring the jury to determine unanimously which means, if any, each of the two Defendants charged in Counts 34 and 36 used to commit the alleged crimes.


Perhaps I’m imagining it, but that strikes me as a potential nudge at Judge Juan Merchan. 

In any event, there will undoubtedly be more to come on this case soon, so stay tuned. 

DJT – SDFL – Order on MTD -… by Susie Moore