Trump Has Two Things in His Favor Amid Mar-a-Lago Indictment: Ex-Prosecutor

There are two factors that could play in the favor of former President Donald Trump amid his indictment in the classified documents case, according to former federal prosecutor Dennis Aftergut on Monday.

Trump is set to be arraigned on Tuesday in Miami on 37 counts ranging from willful retention of classified documents to obstruction charges in connection to the Department of Justice's (DOJ) investigation into whether he mishandled classified documents after leaving office in January 2021. Federal prosecutors are accusing the former president of mishandling sensitive presidential records and obstructing government efforts to retrieve them. Trump, however, has maintained his innocence, accusing prosecutors of investigating him for political reasons.

Legal experts have long pointed to the classified documents investigation, which came to the public view after an FBI raid at Trump's Mar-a-Lago residence last August, as perhaps the most troubling legal issue for the former president, who faces a myriad of investigations as he again runs for president.

Ahead of Tuesday's anticipated arraignment, Aftergut in an interview with Salon, pointed to two specific things that could benefit the former president in a trial, which special counsel Jack Smith has said would be "speedy."

Trump Appointee Assigned to Oversee Classified Documents Case

First, Aftergut explained that Trump could benefit from the judge who is currently assigned to the case. Judge Aileen Cannon, who has made headlines for handing Trump legal wins in the past that slowed down the classified documents case, is set to oversee the case.

However, Cannon will not be presiding over Trump's expected arraignment on Tuesday as previously announced, but remains the head judge on the case. Instead, Magistrate Judge Jonathan Goodman will oversee the arraignment, The Miami Herald reported on Monday afternoon.

"She is a Trump appointee who bent over backward for Trump in naming a special master to review the seized documents last year; she was promptly slapped down for that unlawful decision by the appeals court. If the case is tried before her, Trump may have a wild card going for him," Aftergut said.

Cannon was appointed to the bench by Trump, and is facing calls to recuse herself from the case. Laurence Tribe, an esteemed Harvard Law professor, previously told Newsweek that Cannon "caused a long delay that was so clearly unjustified that her pro-Trump interventions were reversed twice by the very conservative Eleventh Circuit Court of Appeals."

Former federal prosecutor Neama Rahmani told Newsweek in a phone interview on Monday that Cannon is a "favorable draw" for Trump, explaining that she will have broad authority to rule over which arguments can be made in the courtroom. However, it is unlikely that she would outright dismiss the case, he added.

"Cannon is someone who is a Trump appointee and gave him favorable, and incorrect, rulings with respect to the search warrant that was executed and the special master," Rahmani said.

In federal cases, it is typically very difficult to remove a judge, he continued. The DOJ would have to reach a "high standard" for Cannon to be disqualified from the case, and Rahmani said there is likely "no basis" for her disqualification.

Jury Pool Could Also Benefit Trump

The second factor benefiting the former president is that the jury could be more sympathetic to Trump than in other cases, such as the other indictment in a campaign finance case out of deeply Democratic New York City.

"Florida is Trump country," Aftergut said. "There's a distinct possibility that citizens who are true believers in anything the former president does could make it onto the jury. If so, in deliberations, one or more could refuse to vote to convict Trump regardless of overwhelming evidence. That would result in a hung jury."

Long viewed as the nation's largest swing state, Florida has drifted toward Republicans in recent election cycles, backing Trump in both his 2016 and 2020 presidential bids and delivering strong victories for the GOP in the 2022 midterms. The state has emerged as a conservative stronghold where the former president remains popular.

Rahmani noted on Monday that Miami is generally more politically divided than more conservative-leaning parts of Florida, but that jury selection in the case will be "critical." The DOJ will seek to remove jurors who have preconceived notions about the case, as many conservatives believe Trump has been treated unfairly by the federal agency, he said.

"Everyone in the country has heard of this and has thoughts on it," Rahmani concluded.

Update 06/12/2023, 4:15 p.m. ET: This story was updated with additional information.