The federal judge overseeing Donald Trump’s prosecution for retaining classified documents on Thursday ruled that she would schedule a hearing to weigh excluding key evidence that forms the backbone of the obstruction-of-justice part of the case against the former president.
The US district judge Aileen Cannon said she would hold an evidentiary hearing to revisit another judge’s decision to allow prosecutors to access damaging memos, made by the ex-Trump lawyer Evan Corcoran, under what is known as the crime-fraud exception.
The crime-fraud exception allows prosecutors to see confidential and protected communications between a defendant and a lawyer, if their legal advice is used in furtherance of a crime.
The new hearing, which does not yet have a date, would see Trump’s lawyers push to undo a major victory for prosecutors when they gained access to evidence showing Trump’s reluctance to comply with a subpoena compelling the return of classified documents in his possession.
If Cannon excludes even part of the evidence, it could gut some of the most incriminating material against Trump. Even if she keeps it intact, it would take weeks to resolve, thus playing into Trump’s strategy of delaying the case as much as possible.
The obstruction part of the case centers on Trump’s incomplete compliance with an 11 May 2022 grand jury subpoena that demanded the return of any classified documents in his possession, months before the FBI seized 101 classified documents when it searched Mar-a-Lago.
The Corcoran memos – the contents of which were first reported by the Guardian last year – have played a major role in bolstering the charge that Trump conspired with Trump valet Walt Nauta and property manager Carlos De Oliveira to play a “shell game” in hiding boxes of classified documents so Corcoran could not ensure their return.
The indictment quoted the memos as saying Trump responded: “Well, what if we, what happens if we just don’t respond at all or don’t play ball with them?” and “Wouldn’t it be better if we just told them we don’t have anything here?” and “Well, look, isn’t it better if there are no documents?”
After Corcoran found 38 classified documents in the storage room, his memos recount Trump asking him: “Did you find anything? … Is it bad? Good?” and making a sort of plucking motion, suggesting “if there’s anything really bad in there, like, pluck it out”.
Cannon’s decision to reopen litigation over the crime-fraud exception comes after a sealed hearing on Tuesday in federal district court in Fort Pierce, Florida, where Trump’s lawyers are understood to have argued the crime-fraud exception should not have been applied at all.
At the hearing, prosecutors objected that having an evidentiary hearing to go through the memos again to see whether having the crime-fraud exception applied would be tantamount to having a “mini-trial”, according to the ruling.
But Cannon appears to have been irritated by that argument and notes in testy language that there was a difference between “a resource-wasting and delay-producing ‘mini-trial’” and a hearing “geared to adjudicating the contested factual and legal issues”.
The decision was in keeping with Cannon’s tendency to want to make her own decisions on issues that were litigated in other courts during the criminal investigation.
The crime-fraud exception to the memos, for instance, was first decided by Beryl Howell, then chief federal judge in the District of Columbia, and upheld by the US court of appeals for the DC circuit in March 2022 after Trump and Corcoran made separate challenges to the ruling.
Last Friday, Cannon held a hearing to consider whether the special counsel, Jack Smith, had been unlawfully appointed – even though multiple federal courts dating back to the Watergate scandal have held that the attorney general can appoint special prosecutors.
And while her latest ruling denied a request by Trump to suppress the classified documents the FBI seized at Mar-a-Lago in August 2022 over alleged deficiencies with the warrant, Cannon allowed a narrower legal challenge to the search to continue.
Cannon wrote she wanted to explore further whether the FBI agents who executed the search warrant had been given definitions of terms like “presidential records” or “national defense information” in identifying what the warrant authorized them to seize.