Special counsel Jack Smith said in court filings late Tuesday evening that Judge Aileen Cannon had ordered briefings based on a “fundamentally flawed” understanding of the case that has “no basis in law or fact,” which may be the prosecutors’ strongest criticism to date of the judge’s handling of the case involving classified documents against former President Donald Trump via CNN.
Cannon’s request for jury instructions, which endorsed Trump’s claims of having extensive authority to seize confidential government papers, was sharply criticized by Smith’s team, which threatened to file an appeal if the former president’s arguments regarding his record-retention powers were granted.
It is noted that in an unusual order last month, Cannon asked attorneys on the classified documents case to submit briefs on potential jury instructions defining terms of the Espionage Act, under which Trump is charged over mishandling 32 classified records. Cannon asked the special counsel and defense attorneys to write two versions of proposed jury instructions.
In the first case, a jury would be asked to determine whether each record that Trump is accused of keeping fit within the parameters of “personal” or “presidential” records as defined by the Presidential Records Act. This post-Watergate legislation specifies how government-owned White House records are to be handled after a president leaves office.
The second version Cannon requested makes the assumption that Trump had total ability to obtain any records he desired from the White House in his capacity as president, which would make it extremely difficult for prosecutors to get a conviction. Smith’s team stated that “the Government must be provided with an opportunity to seek prompt appellate review” if she were to implement this kind of directive.
“Both scenarios rest on an unstated and fundamentally flawed legal premise — namely, that the Presidential Records Act and in particular its distinction between ‘personal’ and ‘Presidential’ records, determines whether a former President is ‘authorized,’ under the Espionage Act, to possess highly classified documents and store them in an unsecure facility,” the special counsel’s team wrote.
If allowed to be presented to a jury, prosecutors said, “that premise would distort the trial.”
Cannon made a request few days after the hearing of arguments on whether the Presidential Records Act gave the former president the power to classify any record from his tenure at the White House as personal. According to Trump’s attorneys, he had the authority to do so and they have asked the judge to dismiss the criminal charges.
In their own proposed jury instructions filed Tuesday evening, Trump’s defense attorneys suggested that, in the first hypothetical, Cannon tell trial jurors that Trump was “authorized” by the PRA to “possess a category of documents defined as ‘personal records,’ both during and after his term in office.”
