Special Counsel Jack Smith and Judge Aileen Cannon, appointed by Trump to oversee the case involving the former president’s classified documents in Florida, seem to be heading towards a clash.
In a bold move, Smith has filed an appeal urging Judge Cannon to make a decision on jury instructions related to the President Records Act (PRA).
Former President Donald Trump has argued that the PRA grants him the authority to declassify any documents found at Mar-a-Lago, even those containing sensitive national security information. Smith contends that Judge Cannon’s request for conflicting jury instructions is based on a “fundamentally flawed legal premise.”
According to Smith, if Judge Cannon agrees with Trump that the PRA does not differentiate between official records and personal property, he will seek an appeal and request an immediate review. He further argues that such instructions would “pervert the trial” if it proceeds to court.
“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 said in the filing. “Indeed, based on the current record, the PRA should not play any role at trial at all.”
“Furthermore, Trump’s entire effort to rely on the PRA is not based on any facts,” Smith continues. “Instead he has attempted to fashion out of whole cloth a legal presumption that would operate untethered to any facts — without regard to his actual decisions, his actual intent, the unambiguous definition of what continues personal records under the PRA, or the plainly non-personal content of the highly classified documents he retained.”
“There is no basis in law or fact for that legal presumption, and the Court should reject Trump’s effort to invent one as a vehicle to inject the PRA into this case,” he concludes.
JUST IN: An extraordinary filing from Jack Smith tonight that is almost incredulous at how legally incorrect Judge Cannon's jury instruction scenarios are re: Trump's claim that he designted reams of classified info as "personal" on the way out of the WH.https://t.co/lmmI1dvWDb pic.twitter.com/grnmBsGwJC
— Kyle Cheney (@kyledcheney) April 3, 2024
Legal professionals have emphasized that Smith’s argument was a pivotal juncture that had the potential to either solidify or undermine the special counsel’s case.
“Jack Smith just threw down the gauntlet,” wrote former federal prosecutor Renato Mariotti. By asking Judge Cannon to rule now, he wrote on X, Smith cautions her to “avoid a miscarriage of justice at trial.”
Jack Smith just threw down the gauntlet, threatening to *immediately appeal* if Judge Aileen Cannon rules that the Presidential Records Act gave Trump the right to remove and keep classified material.
He asks her to rule *now* to avoid a miscarriage of justice at trial. https://t.co/Ymku55OFMs
— Renato Mariotti (@renato_mariotti) April 3, 2024
More context:
Cannon’s order asking the parties for jury instructions that erroneously stated the law suggested she was contemplating telling the jury that the PRA gave Trump the right to take and keep whatever he wanted.
— Renato Mariotti (@renato_mariotti) April 3, 2024
“To make this crystal clear, if trial begins and Judge Cannon makes a ruling that is legally erroneous *in the middle of the trial*, resulting in a not guilty verdict, prosecutors *cannot* appeal the verdict,” he explained. “That’s why Jack Smith wants a ruling before trial, so he can appeal.”
Bradley Moss, a national security attorney, stated that the Smith filing serves as a warning to Cannon that he has reached his limit.
“The PRA angle is a question of law, not fact, and if she believes Trump’s PRA defense she should grant his motion and let Smith take this to the 11th circuit already,” he wrote.
Jack Smith puts Cannon on notice that he has had enough with his weird game. The PRA angle is a question of law, not fact, and if she believes Trump’s PRA defense she should grant his motion and let Smith take this to the 11th circuit already.
Oh, and they make clear Tom Fitton https://t.co/sULQndnM2T
— Bradley P. Moss (@BradMossEsq) April 3, 2024
According to the Daily Beast, Smith encountered a humiliating obstacle recently when Judge Cannon warned of dismissing the case unless he surrendered all classified materials to the defense team.
Smith is essentially at risk of Trump being acquitted by the jury because of a lack of evidence proving the classified nature of the materials, or else a group of regular citizens will have the chance to review the documents.
“Although there is no formal means in the PRA by which a president is to make that categorization, an outgoing president’s decision to exclude what he/she considers to be personal records from presidential records transmitted to the National Archives and Records Administration constitutes a president’s categorization of those records as personal under the PRA,” Judge Cannon wrote in March.