WASHINGTON – Federal prosecutors chided the judge presiding over former President Donald Trump's classified documents case in Florida, warning her off potential jury instructions that they said rest on a “fundamentally flawed legal premise.”
In an unusual order, U.S. District Judge Aileen Cannon had asked prosecutors and defense lawyers to formulate proposed jury instructions for most of the charges even though it remains unclear when the case might reach trial. She asked the lawyers to respond to two different scenarios in which she appeared to accept the Republican ex-president's argument that he was entitled under a statute known as the Presidential Records Act to retain the sensitive documents he is now charged with possessing.
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The order surprised legal experts and alarmed special counsel Jack Smith's team, which said in a filing late Tuesday that the 1978 law — which requires presidents to return presidential records to the government upon leaving office but permits them to retain purely personal ones — has no relevance in a case concerning highly classified documents like the ones Trump is alleged to have stored at his Mar-a-Lago estate in Palm Beach, Florida.
Those records, prosecutors said, were clearly not personal and there is no evidence Trump ever designated them as such. They said that the suggestion he did so was “invented" only after it became public that he had taken with him to Mar-a-Lago after his presidency boxes of records from the White House and that none of the witnesses they interviewed in the investigation support his argument.
“Not a single one had heard Trump say that he was designating records as personal or that, at the time he caused the transfer of boxes to Mar-a-Lago, he believed that his removal of records amounted to designating them as personal under the PRA," prosecutors wrote. “To the contrary, every witness who was asked this question had never heard such a thing.”
Smith's team said that if the judge insists on citing the presidential records law in her jury instructions, she should let the lawyers know as soon as possible so that prosecutors can appeal.
The filing reflects continued exasperation by prosecutors at Cannon's handling of the case.
The Trump-appointed judge has yet to rule on multiple defense motions to dismiss the indictment as well as other disagreements between the two sides, and the trial date remains unsettled, suggesting that a criminal case that Smith's team has said features overwhelming evidence could remain unresolved by the time of the November presidential election.
Cannon, who earlier faced blistering criticism over her decision to grant Trump's request for an independent arbiter to review documents obtained during an FBI search of Mar-a-Lago, heard arguments last month on two of Trump's motions to dismiss the case, including that the Presidential Records Act permitted him to designate the documents as personal and that he was therefore permitted to retain them.
The judge appeared skeptical of that position but did not immediately rule. Days later, she asked the two sides to craft jury instructions that responded to the following premise: “A president has sole authority under the PRA to categorize records as personal or presidential during his/her presidency. Neither a court nor a jury is permitted to make or review such a categorization decision.”
An outgoing president's decision to exclude personal records from those returned to the government, she continued, “constitutes a president's categorization of those records as personal under the PRA.”
That interpretation of the law is wrong, prosecutors said. They also urged Cannon to move quickly in rejecting the defense motion to dismiss.
“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 on the elements of Section 793,” they said, citing the statute that makes it a crime to illegally retain national defense information.
“Indeed, based on the current record, the PRA should not play any role at trial at all,” they added.
Trump, Republicans' presumptive nominee for 2024, is facing dozens of felony counts related to the mishandling of classified documents, according to an indictment alleging he improperly shared a Pentagon “plan of attack” and a classified map related to a military operation. The Florida case is among four criminal cases against the former president, who has insisted he did nothing wrong in any of them.
In a separate Trump team filing, defense lawyers renewed their demand that Cannon dismiss the indictment.