Jack Smith 'Losing the War' Against Donald Trump: Ex-Solicitor General

Donald Trump may still end up getting what he wants over Special Counsel Jack Smith in the classified documents case, even after a judge denied one of the former president's attempts to dismiss the charges, a legal expert has said.

Neal Katyal, a lawyer and former acting U.S. solicitor general during the Obama administration, was reacting to the recent ruling from Judge Aileen Cannon to reject one of Trump's motions to dismiss in the case, in which the Republican has pleaded not guilty to 40 federal charges.

Cannon on Thursday rejected Trump's legal team's argument that the charges related to the Espionage Act are "unconstitutionally vague" when applied to the former president. She added that the argument did warrant "serious consideration," but that Trump's concerns about the Espionage Act should be brought up in "connection with jury-instruction briefing."

Speaking to MSNBC, Katyal suggested that Smith may end up "losing the war" with Trump as Cannon suggesting his legal team could bring up their arguments again in the future could result in the Republican presidential hopeful's desire in delaying the start of the federal trial, currently scheduled for May 20, beyond November's election.

If Trump, the presumptive 2024 Republican nominee, beats President Joe Biden before the classified documents trial takes place, Trump could then order the Department of Justice to drop the federal case into him once he enters office.

Katyal was asked by MSNBC's Joy Reid if Cannon—who was nominated to the bench by Trump—agreeing to hear the motions to dismiss arguments in the first place was just a delay tactic.

In reply, he said: "Federal judges can sometimes surprise and that's unlike predictable politicians. Many people's expectations for Judge Cannon were low particularly because of her two rulings last year, appointing a special master, which was to put it mildly nuts, and was rebuked by the very conservative Court of Appeals.

"Judge Cannon has done the right thing rejecting one of Trump's motions calling the statute unconstitutionally vague, which is preposterous. But the big concern is that Jack Smith maybe won a battle, but he's losing the war."

Katya suggested Cannon's ruling outcome can only be viewed as a positive for Smith in a small way because of the delay the hearing has caused, similar to what may occur with the Supreme Court's ruling on whether Trump can cite absolute immunity to dismiss his federal election obstruction case.

"There is no chance that Trump is going to win and that the court is going to say he has absolute immunity. But what the Supreme Court did there is delay his trial for January 6 charges potentially to after the election," Katyal said,

"And the same thing I fear is happening with Judge Cannon, she keeps kicking the can down the road. The fact that she had a daylong hearing today on these two bogus issues tells you everything you need to know. The only thing that Donald Trump's arguments today warrant are an eye roll and a swift denial."

Trump's legal team has been contacted for comment via email.

Separately on Thursday, Cannon didn't issue a ruling on a second motion filed by Trump's team arguing that the Presidential Records Act allows Trump to designate the documents he took after leaving the White House his own personal property.

During the hearing, Cannon said it would be "difficult" to justify tossing out the entire case before it went to a jury over this claim, an indication she will also rule against Trump in that motion.

Cannon is also expected to confirm that the trial will be pushed back from its current start date of May 20.

Trump's lawyers suggested a potential August start date, as required by a court order, while also urging that the trial not take place until 2025 because of Trump's campaign commitments.

Smith's team previously told Cannon that the trial should take place in July.