Special counsel Jack Smith warned the judge overseeing Donald Trump\u2019s classified documents case that she is pursuing a legal premise that \u201cis wrong\u201d and said he would probably appeal to a higher court if she rules that a federal records law can protect the former president from prosecution.<\/p>\n
In a late-night legal filing Tuesday, Smith\u2019s office pushed back hard against an unusual instruction from U.S. District Judge Aileen M. Cannon \u2014 one that veteran national security lawyers and former judges have said badly misinterprets the Presidential Records Act and laws related to classified documents.<\/p>\n
Smith\u2019s filing represents the most stark and high-stakes confrontation yet between the judge and the prosecutor, illustrating the extent to which a ruling by Cannon that legitimizes the PRA as a defense could eviscerate the historic case, one of four Trump is facing as he again runs for president. The special counsel repeatedly said that he probably would appeal such a ruling, potentially delaying the classified documents trial well beyond November\u2019s presidential election.<\/p>\n
Last month, Cannon ordered defense lawyers and prosecutors in the case to submit hypothetical jury instructions based on two different, and very much contested, readings of the PRA.<\/p>\n
In response, Smith said Cannon was pursuing a \u201cfundamentally flawed legal premise\u201d that the law somehow overrides Section 793 of the Espionage Act, which Trump is accused of violating by stashing hundreds of classified documents at Mar-a-Lago, his Florida home and private club, after his presidency ended.<\/p>\n
\u201cThat legal premise is wrong, and a jury instruction for Section 793 that reflects that premise would distort the trial,\u201d Smith wrote. The Presidential Records Act, he said, \u201cshould not play any role at trial at all.\u201d<\/p>\n
Smith\u2019s filing was unusual in that prosecutors rarely seek direct confrontations with judges overseeing their case; it makes clear he sees significant potential danger for his prosecution from Cannon\u2019s approach to the PRA issue. How Cannon, a Trump nominee who has been on the bench since late 2020, responds will be critical.<\/p>\n
If she rules against Smith, he could appeal. If she retreats from the disputed legal premise, the issue could fade into the background as she decides a pretrial hearing schedule and sets a trial date.<\/p>\n
Cannon has been slow to make a number of decisions, even as prosecutors have urged her to move quickly, and it\u2019s possible that on this issue too, she simply takes her time. In the meantime, Trump is scheduled to stand trial starting April 15 in a New York state case accusing him of falsifying business records to cover up a hush money payment during the 2016 election. Two other criminal cases, related to Trump\u2019s alleged efforts to block Joe Biden\u2019s 2020 election victory, are mired in pretrial proceedings and appeals.<\/p>\n
Tuesday night\u2019s filing urged Cannon to rule quickly on whether the Presidential Records Act is relevant to the case, so that prosecutors can appeal any such determination to a higher court before the Florida trial, which is delayed from its original late May start date but has not yet been rescheduled.<\/p>\n
Smith has said the records act has nothing to do with the national security crimes Trump is accused of committing \u2014 a view backed by many legal experts, who have said a ruling in Trump\u2019s favor would open the door for future presidents to claim personal ownership of national defense secrets. Waiting until the trial is underway to rule on the issue, Smith warned, could doom the prosecution\u2019s case before it ever gets to a jury.<\/p>\n
\u201cIf the Court were to defer a decision on that fundamental legal question it would inject substantial delay into the trial and, worse, prevent the government from seeking review before jeopardy attaches,\u201d he wrote.<\/p>\n
Even as he questioned the premise of Cannon\u2019s order, Smith complied, offering proposed jury instructions for the two legal scenarios she outlined. Smith\u2019s proffered language, however, was couched in a kind of lawyerly attack on Cannon\u2019s legal analysis.<\/p>\n
\u201c[E]ven if an individual holds a security clearance and has a need to know classified information, the individual\u2019s possession of the classified information is unauthorized if the individual removes the classified information from a secure facility or possesses the information outside of a secure facility,\u201d Smith wrote in the proposed jury instruction.<\/p>\n
\u201cI instruct you, however, that, as to a former President, even if he lacks a security clearance, lacks a need to know classified information, and stores information outside of a secure facility, he is authorized to do so if the classified information is contained within a \u2018personal record,\u2019 within the meaning of the Presidential Records Act (PRA).\u201d<\/p>\n
Trump has pleaded not guilty to 32 charges of violating the Espionage Act, with each count corresponding to a specific classified document that he is alleged to have retained after leaving office, as well as eight additional charges of obstructing government efforts to retrieve the materials. His lawyers argue that the former president had the authority under the PRA to declare even highly classified documents to be his personal records and property.<\/p>\n
Prosecutors and legal experts have said such claims badly misstate the law, 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. Legal experts say Cannon\u2019s focus on jury instructions seems odd at this stage of the process 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\u2019s orders indulged some mangled interpretations of laws that have been pushed by Trump\u2019s lawyers and supporters.<\/p>\n
Trump\u2019s team said in its own late-night filing that Cannon\u2019s assignment is consistent with Trump\u2019s position that the \u201cprosecution is based on official acts\u201d he took as president \u2014 not illegal retention of materials.<\/p>\n
The judge told lawyers to write jury instructions for two legal interpretations. Legal experts said she could use those instructions to help inform her eventual ruling on a request that Trump made to dismiss the case because the PRA allowed him to designate any presidential record as personal.<\/p>\n
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 \u2014 which is what Trump\u2019s 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.<\/p>\n
The government has said it is the Espionage Act \u2014 not the PRA \u2014 that guards classified materials. Trump is not charged with violating the PRA, and prosecutors said throughout their filing that the PRA should not be in those instructions.<\/p>\n
\u201cThe PRA\u2019s distinction between personal and presidential records has no bearing on whether a former President\u2019s possession of documents containing national defense information is authorized under the Espionage Act, and the PRA should play no role in the jury instructions,\u201d Smith wrote. \u201cIndeed, based on the current record, the PRA should not play any role at trial at all.\u201d<\/p>\n
In their proposed jury instructions, Trump\u2019s attorneys 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.<\/p>\n
\u201cYou 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,\u201d Trump\u2019s legal team wrote in the hypothetical jury instructions. \u201cI instruct you that those declassification decisions are examples of valid and legally appropriate uses of President Trump\u2019s declassification authority while he was President of the United States.\u201d<\/p>\n
Cannon held a hearing over a month ago to determine a new date for the classified documents trial. Prosecutors sought a date in early July, while Trump\u2019s lawyers asked to wait until after the election or to start in August at the earliest. The judge has not yet ruled.<\/p>\n
She issued her jury instruction order a few days after a different hearing, held March 14, at which she heard arguments on two of Trump\u2019s motions to toss out the case.<\/p>\n
One motion 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. Cannon has not yet ruled on that motion.<\/p>\n
Hours after the hearing, she rejected Trump\u2019s other motion to dismiss. It 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.<\/p>\n<\/p>\n
Special counsel Jack Smith warned the judge overseeing Donald Trump\u2019s classified documents case that she is pursuing a legal premise that \u201cis wrong\u201d and said he would probably appeal to a higher court if she rules that a federal records law can protect the former president from prosecution. In a late-night legal filing Tuesday, Smith\u2019s […]<\/p>\n","protected":false},"author":0,"featured_media":2717,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5],"tags":[],"class_list":["post-2716","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-politics"],"_links":{"self":[{"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/posts\/2716","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"replies":[{"embeddable":true,"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/comments?post=2716"}],"version-history":[{"count":0,"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/posts\/2716\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/media\/2717"}],"wp:attachment":[{"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/media?parent=2716"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/categories?post=2716"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/tags?post=2716"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}