Judge Cannon Strikes Part of Jack Smith's Indictment

In a new court filing, Judge Cannon has granted - in part - a Trump motion to strike a paragraph of the indictment, while denying Trump's motion to dismiss for pleading deficiencies.

In a new ruling, Judge Cannon has agreed to strike paragraph 36 from Jack Smith’s superseding indictment of Trump, Nauta, and DeOliveira in the Espionage and Obstruction case in Florida. Cannon says the following paragraph is “prejudicial” because it’s not linked to a specific charge:

36. In August or September 2021, when he was no longer president, TRUMP met in his office at The Bedminster Club with a representative of his political action committee (the "PAC Representative"). During the meeting, TRUMP commented that an ongoing military operation in Country B was not going well. TRUMP showed the PAC Representative a classified map of Country Band told the PAC Representative that he should not be showing the map to the PAC Representative and to not get too close. The PAC Representative did not have a security clearance or any need-to-know classified information about the military operation.

Judge Cannon explains that “where an indictment contains allegations that are clearly irrelevant and/or inflammatory and prejudicial, courts have discretion under Rule 7(d) to strike those allegations, although the threshold for doing so is “most exacting.” See United States v. Awan.”

Once again, Cannon agrees largely with Jack Smith, but admonishes him anyway:

Having reviewed these arguments in their totality and carefully considered the Superseding Indictment as a whole, the Court agrees that much of the language in the Superseding Indictment is legally unnecessary to serve the function of an indictment as explained in the foregoing caselaw. The Court also notes the risks that 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, especially in cases of significant public interest. Notwithstanding these concerns, given the rigorous standard for applying Rule 7(d), the Court exercises its discretion, with one exception below, not to order the “striking” of allegations requested by Defendants, at least not as this stage, because Defendants have not clearly shown that the challenged allegations are flatly irrelevant or prejudicial.

She says everything in the speaking indictment is okay, except paragraph 36: Against this backdrop, and without any authority (or example) provided by the Special Counsel authorizing the inclusion in an indictment of substantive Rule 404(b) allegations, the Court finds it warranted to strike paragraph 36 subject to Rule 404(b) litigation in the normal course.

What she fails to explain is how US v. Awan supports her ruling in this matter, especially since it requires a “most exacting” threshold to strike the paragraph. I would expect to see an explanation of the threshold and how Trump met it - but we get none of that. Just a plain “at my discretion” statement. It will be interesting to see whether Jack Smith asks the court to reconsider this, and on what basis.

In the same ruling, Judge Cannon considers Trump’s motion to dismiss the entire indictment on the grounds of deficient pleadings. Once again, she takes pot shots at Special Counsel while simultaneously ruling in his favor:

The Court has reviewed the Motion, the Special Counsel’s Opposition, and Defendants’ Reply in Support of the Motion. The Court also heard argument on the Motion on May 22, 2024. Upon full review, Defendants’ Motion is DENIED for this overall reason: 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.

You can read the ruling in its entirety here, and Andy McCabe and I will discuss this further on the next episode of the Jack podcast.

Thanks for reading The Breakdown!

~ AG