On Monday, CNN revealed excerpts from the tape of former President Donald Trump boasting about improperly holding classified information to staffers and patrons at his Bedminster golf club in New Jersey — evidence special counsel Jack Smith already had and will almost certainly make central to his case against the former president at trial.
But the former president might have a trick up his sleeve: simply filing a motion to have the tape thrown out as evidence. And Aileen Cannon, the Trump-appointed judge overseeing the case, might be willing to entertain that argument, reported Newsweek.
"The tape itself is admissible. Former federal prosecutor Neama Rahmani told Newsweek that evidence is admissible as long as it is relevant, authentic and does not violate the Rules of Evidence or the Constitution," wrote Katherine Fung. However, "Former Assistant United States Attorney Andrew Weissmann told Newsweek that there are two rules Trump's legal team will likely use to make their argument: rules 404b and 403. Under rule 404b, evidence of other crimes or wrongs are not admissible to prove a person's character, while evidence can be excluded under rule 403 if its value is substantially outweighed by the danger of unfair prejudice."
According to Weissman, "The government has the better of the 404b argument which allows evidence of other crimes to prove motive, intent, opportunity and lack of mistake" — but Cannon would have the final say on whether to invoke rule 403.
Cannon previously triggered outrage when she interfered in the initial investigation of the classified information seized from Trump's Mar-a-Lago resort, ordering a special master to review the documents — and effectively setting up extra legal protections for Trump that don't exist for any other defendant. Her decision was swiftly reversed by a three-judge panel of the Court of Appeals for the 11th Circuit, which included two other Trump appointees.
This comes amid other concerns about how Cannon could tilt the trial in Trump's favor, including possibly holding it in an area with a maximally favorable jury pool to the former president.
