Judge orders hearing to consider tossing key evidence in Trump classified docs case

The federal judge overseeing Donald Trump's classified documents case on Thursday ordered an additional hearing to determine whether prosecutors improperly used evidence protected by attorney-client privilege to secure their indictment against the former president.

In an 11-page ruling issued Thursday, Judge Aileen Cannon wrote that an additional hearing was necessary to resolve "pertinent factual disputes" related to key evidence in the case.

As previously reported by ABC News, prosecutors have relied on the notes of Trump's former lead attorney Evan Corcoran to support their allegations that the former president obstructed justice by hiding classified documents from investigators.

After a federal judge in Washington D.C. determined last year that the notes were not protected by attorney-client privilege because Trump used his attorney in furtherance of a crime, defense attorneys asked Cannon to reconsider whether the evidence should be tossed out.

Judge Cannon wrote in Thursday's order that she would set a date for the hearing in a separate order.

The judge heard arguments on the defense motion to suppress the evidence during a sealed hearing on Tuesday morning. In Thursday's order she wrote that she considered prosecutors' concerns that the hearing could "devolve into a 'mini trial'" -- but she said she would impose "reasonable limitations" on the hearing, which could include witness testimony.

"[T]here is a difference between a resource-wasting and delay-producing 'mini-trial,' on the one hand, and an evidentiary hearing geared to adjudicating the contested factual and legal issues on a given pre-trial motion to suppress," Cannon wrote.

Cannon said she also plans to consider whether an attachment of the search warrant for the FBI's August 2022 search of Trump's Mar-a-Lago estate contained "ambiguities" about the evidence authorized to be seized. Defense attorneys argued that terms such as "presidential records" and "national defense information" were too vague for the FBI agents who executed the warrant.

Handing a small win to prosecutors, Cannon separately denied a request to hold a hearing about whether the application for the Mar-a-Lago search warrant contained "material false statements or omissions."

Defense attorneys argued on Tuesday that the warrant application omitted key details, including that Trump did not have to have a security clearance to view classified documents, that an FBI supervisor disagreed about a search warrant being necessary, and the lack of a definition of the word "personal records."

"[The defense] identifies four omissions in the warrant, but none of the omitted information -- even if added to the affidavit in support of the warrant -- would have defeated a finding of probable cause," Cannon wrote.

In a separate order issued Thursday, Cannon set a July 5 deadline for both sides to submit additional briefs regarding a limited gag order prosecutors are seeking against Trump.

Prosecutors have asked the judge to prohibit the former president from making public statements that post a "significant, imminent, and foreseeable danger" to law enforcement agents involved in the case.

The delayed decision, which followed a hearing on the matter on Monday, ensured that Trump would go into Thursday's presidential debate without any restrictions on his ability to comment on the Mar-a-Lago search.

On Tuesday, the judge overseeing Trump’s New York criminal hush money case also lifted part of Trump's limited gag order in that case order to allow Trump to make statements about witnesses and the jury in that trial.

In the documents case, special counsel Jack Smith asked Cannon to modify Trump’s conditions of release to limit Trump’s public statements about the search following a month of escalating rhetoric from the former president. Smith argued that Trump’s statements about the raid falsely suggested that law enforcement officers were "complicit in a plot to assassinate him.”

During Monday's hearing, Cannon questioned prosecutors about the connection between Trump’s rhetoric and the conduct of his supporters while also raising concerns about the constitutionality of the request.

Trump pleaded not guilty last year to 40 criminal counts related to his handling of classified materials after leaving the White House, after prosecutors said he repeatedly refused to return hundreds of documents and took steps to thwart the government's efforts to get the documents back.

Trump has denied all charges and denounced the probe as a political witch hunt.