Smith rebukes Cannon’s jury instruction order in Trump documents case

Special counsel Jack Smith pushed back hard against the judge, saying that the jury instructions were based on a “fundamentally flawed legal premise” and warned that he may appeal if the judge rules against him.

Legal experts say Cannon’s focus on jury instructions seems odd because a trial is not imminent and the judge still has a number of decisions to make in the pretrial proceedings before the instructions are relevant. They also say the premise of Cannon’s orders indulged some mangled interpretations of laws that have been pushed by Trump’s lawyers and supporters.

The government’s response highlighted its frustration with the instructions and urged Cannon to quickly decide on some of these key legal questions — writing that if the court “were to defer a decision on that fundamental legal question it would inject substantial delay into the trial.”

It also warned that relying on Trump’s interpretations of these laws would “distort the trial.”

Trump’s team said Cannon’s assignment is consistent with his position that the “prosecution is based on official acts” he took as president — not illegal retention of materials.

In the assignment, Cannon asked the lawyers to write jury instructions about the Presidential Records Act, or PRA, which says that presidential records belong to the public and are to be turned over to the National Archives and Records Administration at the end of a presidency.

In one scenario, Cannon asked them to craft jury instructions that assume the PRA allows presidents to designate any documents as personal at the end of a presidency — which is what Trump’s legal team has argued he had the authority to do. She then said they should also write separate jury instructions predicated on the idea that jurists would be able to determine which of the documents Trump is accused of illegally retaining are personal and which are presidential.

The government has said it is the Espionage Act — not the PRA — that guards classified materials. Trump is charged with 32 counts of violating a section of the Espionage Act, with each count corresponding to a distinct classified document that he is alleged to have retained after leaving office. He is also charged with eight counts related to alleged obstruction of officials’ efforts to retrieve the materials.

Trump pleaded not guilty to all charges.

Prosecutors suggested in their filings that they would appeal if Cannon decides to intertwine the PRA with the Espionage Act in jury instructions. Trump is not charged with violating the PRA and prosecutors said throughout their filing that the PRA should not be in those instructions.

“The PRA’s distinction between personal and presidential records has no bearing on whether a former President’s possession of documents containing national defense information is authorized under the Espionage Act, and the PRA should play no role in the jury instructions,” Smith wrote in his filing Tuesday . “Indeed, based on the current record, the PRA should not play any role at trial at all.”

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In their proposed jury instructions, Trump’s team leaned into their argument that the former president had the ultimate authority to determine the designation of the documents that he is accused of illegally retaining.

“You heard evidence during the trial that President Trump exercised that authority, at times verbally and at times without using formal procedures, while he was President,” Trump’s legal team wrote in the hypothetical jury instructions. “I instruct you that those declassification decisions are examples of valid and legally appropriate uses of President Trump’s declassification authority while he was President of the United States.”

Cannon, who has been on the bench since late 2020, originally scheduled the trial to begin in May. But that seems all but certain to be moved back, and the judge held a hearing last month to determine when the trial should take place. She has not yet ruled on a trial date.

The judge issued her jury instruction order a few days after she held an in-person hearing on two of Trump’s motions to dismiss the case.

One of those motions said the case should be dismissed because the PRA meant that Trump could simply declare highly classified documents to be his personal property and keep them at Mar-a-Lago, his Florida home and private club. Cannon has not yet ruled on that motion.

She rejected another motion to dismiss that argued that the Espionage Act, which has been used for decades to convict others of improperly possessing classified documents, was too vaguely worded to be used in his indictment.