In what may be the strongest criticism from prosecutors yet of Judge Aileen Cannon‘s handling of the classified documents case against former President Donald Trump, special counsel Jack Smith stated in court filings on Tuesday evening that the judge had ordered briefings based on a “fundamentally flawed” understanding of the case that has “no basis in law or fact.”
Smith’s team strongly criticized Cannon’s request for jury instructions that endorsed Trump’s claims of broad authority to handle classified government documents, and stated that they would seek appellate review if she accepted the former president’s arguments regarding his record-retention powers.
In a unique order last month, Cannon requested attorneys in the classified documents case to submit briefs on potential jury instructions defining terms of the Espionage Act, under which Trump is charged with mishandling 32 classified records. Specifically, Cannon asked for two versions of proposed jury instructions.
The first scenario would require a jury to determine whether each of the records Trump is accused of retaining fell under the categories of “personal” or “presidential” as outlined by the Presidential Records Act, a law governing the handling of White House records at the end of a presidency.
The second version Cannon asked for assumes that as president, Trump had full authority to take records from the White House, making it difficult for prosecutors to secure a conviction. Smith’s team stated that if this instruction was implemented, the government must have the chance to seek appellate review.
“Both scenarios are based on a flawed legal premise – that the Presidential Records Act determines whether a former President is ‘authorized’ under the Espionage Act to possess highly classified documents,” the special counsel’s team wrote.
If presented to a jury, prosecutors said, “that premise would distort the trial.”
Cannon’s request came after recent arguments over whether the Presidential Records Act granted Trump broad authority to designate any record from his time in office as personal. Trump’s attorneys claim he had that authority and are asking the judge to dismiss the criminal charges.
In their own proposed jury instructions, Trump’s defense attorneys suggested that Cannon inform trial jurors that Trump was “authorized” by the PRA to possess “personal records.” They also stated that in the second scenario, there can be no appropriate jury instructions as it would prevent prosecution of Trump.
Trump’s proposal challenges Smith’s ability to prove that the former president knowingly kept the documents, claiming that it is impossible to know his state of mind from the past.
Prosecutors have argued that the PRA is not relevant to the charges against Trump, as the alleged conduct occurred after his presidency ended. They stated that Trump’s claim of designating the records as personal was fabricated after the National Archives retrieved boxes of classified information from Mar-a-Lago two years later.
Their filing revealed evidence of Trump’s record-keeping habits during his presidency, showing no evidence that he designated the relevant records as personal when he left office.
Cannon expressed skepticism about outright dismissing the charges but acknowledged that Trump’s attorneys presented forceful arguments that may be relevant for a trial jury.
However, Cannon has not made a ruling on dismissing the case, and her request for hypothetical jury instructions indicates that she is still considering the role of the PRA in the case.
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