Judge Strikes One Element From Trump Indictment in Documents Case


A federal judge on Monday slightly narrowed the classified documents case against former President Donald J. Trump, saying prosecutors cannot charge him based on an episode in which he is said to have shown a highly sensitive military map to a political adviser months after leaving office.

The decision by the judge, Aileen M. Cannon, was more of a swipe at prosecutors working for the special counsel, Jack Smith, who brought the case than a major blow to the allegations against Mr. Trump. Even though Judge Cannon technically removed the incident from the 53-page indictment, prosecutors may still be able to introduce evidence of it to the jury if the case finally goes to trial.

The incident that Judge Cannon struck took place in August or September 2021 at a meeting at Mr. Trump’s golf course in Bedminster, N.J. During the meeting, prosecutors say, Mr. Trump showed a classified map related to an continuing military operation to a representative of his political action committee, widely believed to be Susie Wiles, who is now a top adviser to Mr. Trump’s campaign.

As he displayed the map, prosecutors say, Mr. Trump told Ms. Wiles that the military campaign was not going well. The indictment pointed out that she did not have a security clearance at the time or “any need-to-know” about the classified information concerning the campaign.

The episode about the map, while indicative of Mr. Trump’s lax handling of classified materials, was not central to the formal allegations in the case. Those focus on his removal from the White House of nearly three dozen documents containing sensitive national security secrets and his repeated efforts to obstruct the government from retrieving them from Mar-a-Lago, his private club and residence in Florida.

Even though Judge Cannon struck the incident about the map from the indictment, she left untouched a similar allegation that is said to have occurred a few months earlier at Mr. Trump’s Bedminster property. In that episode, prosecutors say the former president showed a classified battle plan to a group of people who had come to interview him for a memoir being written by his former chief of staff, Mark Meadows.

“As president I could have declassified it,” Mr. Trump said of the battle plan, according to a recording made of him that day. “Now, I can’t, you know. But this is still a secret.”

It is likely that Judge Cannon allowed that allegation to remain part of the indictment because prosecutors ultimately charged Mr. Trump with illegally holding on to the classified plan.

Lawyers for Mr. Trump had challenged the inclusion of the map, however, as part of a broader attack on the indictment, saying it was extraneous and irrelevant. They argued that it should never have appeared as part of the charges because Mr. Trump has not been formally accused of improperly transmitting classified material to other people, only with illegally retaining it after he left the White House.

In her ruling, Judge Cannon denied the lawyers’ request to dismiss the charges altogether. But she noted that prosecutors undertook an extra responsibility by electing to charge Mr. Trump in the case with what is known as a “speaking indictment” — one that describes events in evocative language rather than merely listing dry violations of the law.

She said she agreed with Mr. Trump’s lawyers, who had argued that much of the language in the indictment — including the episode about the map — was “legally unnecessary” and that risks “can flow from a prosecutor’s decision to include in a charging document an extensive narrative account of his or her view of the facts.”

Judge Cannon added that it was “not appropriate” to include the story about the map in the indictment given that one of Mr. Smith’s top deputies had admitted at a hearing last month that it was not directly related to the charges Mr. Trump is facing.

During the hearing, in Federal District Court in Fort Pierce, Fla., the deputy, Jay I. Bratt, told Judge Cannon that prosecutors had included the incident not as charged behavior, but rather as an indication of the former president’s proclivity for recklessly handling classified material.

Mr. Bratt said the evidence was admissible under what is known as Rule 404(b) of the federal criminal procedure, which permits prosecutors to tell the jury about “bad acts” committed by a defendant that are not directly part of the charges in a case.

Judge Cannon seemed skeptical during the hearing about Mr. Bratt’s argument.

“Do you normally include 404(b) in indictments?” she asked.

When Mr. Bratt said he had included similar evidence in other indictments, Judge Cannon shot back, “Is that proper?”

Judge Cannon left open the possibility that prosecutors could eventually introduce the story about the map to the jury at trial. But they will first have to seek her permission to do so, and Mr. Trump’s lawyers can object to the request.

Her decision to strike the episode was the first time she has pared back any of the charges against Mr. Trump. Through his lawyers, the former president has filed a barrage of attacks against the indictment, and Judge Cannon has ruled on three of them so far, including this one, denying them all.

Just before midnight on Monday, Mr. Trump’s lawyers filed another motion challenging the indictment. This one accused Mr. Smith’s prosecutors of failing to have properly preserved the boxes of documents that the F.B.I. removed from Mar-a-Lago after executing a search warrant at the estate in August 2022.

The lawyers claimed that the federal agents who seized the boxes did not maintain the order of the documents inside them, and did not take photographs that would have served as “alternative evidence of the documents’ sequence in each box.”

Moreover, the lawyers argued that prosecutors misled Judge Cannon at least twice, telling her that “the order of the documents within each box was intact” when in fact in some boxes it was not.

The lawyers have long pointed to the fact that the boxes held a mixture of highly classified materials and routine items like letters and newspaper clippings as proof that they were packed haphazardly and that Mr. Trump had little idea what was inside them. And they claimed that prosecutors undermined this defense by allowing the order of the items inside some of the boxes to have been altered.

“The prosecution team violated President Trump’s due process rights by failing to keep the documents intact and in the same order as they were found during the raid,” the lawyers wrote.

In court papers filed last month, the prosecutors blamed the minor movements on the fact that some of the boxes contained small items like index cards, books and stationary, which, as they put it, “shift easily when the boxes are carried, especially because many of the boxes are not full.”

The prosecutors also noted that the order of the documents in some of the boxes may have changed during a review conducted by an independent arbiter months before charges in the case were even filed. That review, which Mr. Trump himself requested and Judge Cannon ordered, was conducted to weed out any documents that might have been protected by executive privilege.

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