In perhaps prosecutors’ strongest rebuke yet to how Judge Aileen Cannon has handled the classified documents case against former President Donald Trump, special counsel Jack Smith said in court filings late 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 harshly critiqued Cannon’s request for jury instructions that embraced Trump’s claims that he had broad authority to take classified government documents and said it would seek an appeals court review if she accepted the former president’s arguments about his record-retention powers.
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. Specifically, Cannon asked the special counsel and defense attorneys to write two versions of proposed jury instructions.
The first scenario would instruct a jury to assess whether each of the records that Trump is accused of retaining fell into the categories of “personal” or “presidential” as laid out by the Presidential Records Act, a post-Watergate law that governs how White House records belonging to the government are to be handled at the end of a presidency.
The second version Cannon asked for assumes that as president, Trump had complete authority to take records he wanted from the White House, which would make it nearly impossible for prosecutors to secure a conviction. If she were to institute this sort of instruction, Smith’s team said, “the Government must be provided with an opportunity to seek prompt appellate review.”
“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’s request came days after she heard arguments over whether the Presidential Records Act granted the former president broad authority to characterize any record from his time in the White House as personal. Trump’s attorneys claim he did have that authority and have asked the judge to throw out 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.”
In the second scenario, defense attorneys wrote that “there can be no appropriate jury instructions relating to factual issues … because that scenario forecloses prosecution of President Trump.”
Trump’s proposal also challenges Smith’s ability to prove the former president kept the documents “knowingly,” meaning he was aware it was against the law. “Medical science has not yet devised an instrument which can record what was in one’s mind in the distant past,” Trump’s attorneys wrote.
Prosecutors have repeatedly said that PRA is not relevant to the charges against Trump, as the conduct he is accused of happened after his term as president ended. Trump’s claim that he deemed the records personal are “pure fiction,” invented once the National Archives had retrieved boxes with classified information from Mar-a-Lago two years after he left office, they wrote Tuesday.
Their new filing sheds light on some of the evidence that investigators have collected about Trump’s record-keeping habits during his presidency. According to the prosecutors’ account, there is no evidence that Trump designated the relevant classified records as personal when he left the White House, and the prosecutors said he got the idea that he did have such power many months later, from the leader of a conservative legal organization.
Cannon appeared skeptical that the charges should be outright dismissed during the hearing, but she said that Trump’s attorneys were making “forceful” arguments that may be appropriate to present to a trial jury.
Still, Cannon has not made an official ruling on the request to dismiss the case, and her request for hypothetical jury instructions appear to show that the judge is still considering how, or if, the PRA fits into the case at large.
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