Judge denies, for now, a Trump bid to dismiss charges that he hoarded classified documents

The judge overseeing the case against Donald Trump on charges that he amassed classified documents at his Florida estate has rejected, for now, his bid to throw out the bulk of the case based on the argument that he had the right to keep those documents under a federal law governing presidential records.Thursday by U.S. District Judge Aileen Cannon left open the possibility for Trump to continue raising that argument if a trial takes place in the case.

But Cannon, a Trump appointee to the federal bench in Florida, called the prosecutors’ demand to confirm what she plans to tell the jury about that issue “unprecedented and unjust.” The claim that Trump somehow declared highly classified military secrets to be nongovernmental personal records defies credulity, Smith has argued in court papers. And even if Trump did so, Smith says, that has no bearing on whether the former president violated the Espionage Act by storing the records haphazardly throughout his Mar-a-Lago club after he left office.

In a court filing on the issue Tuesday, Smith’s team took the unusual step of threatening to immediately go to the 11th Circuit Court of Appeals if the judge rules that the jury should be told that the presidential records law could have authorized Trump to retain the documents he is charged with keeping at Mar-a-Lago.

Legal experts say leaving the question of a possible Presidential Records Act defense open until a trial raises the possibility of Trump being acquitted without prosecutors having any opportunity to get a higher court to review the issue. Under the Constitution’s double jeopardy provision, prosecutors cannot pursue an appeal once a defendant is acquitted at trial. But they can seek appellate review of certain pretrial rulings.

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