Special counsel Jack Smith tore into the judge presiding over former President Donald Trump‘s classified documents case, claiming her proposed jury instructions contain a “flawed legal premise” worthy of appeal, according to a late filing Tuesday.
U.S. District Judge Aileen Cannon ordered defense lawyers for Trump and prosecutors to file submissions outlining hypothetical jury instructions based on competing interpretations of two laws relevant to the case. Her March 18 order suggested Trump may have had a legal right under the Presidential Records Act to declare records as personal after leaving office, a premise Smith said was wrong.
Cannon, a Trump appointee, asked both parties to write two versions of proposed jury instructions that frame the matters jurors must review before considering a person’s guilt or innocence.
The first scenario asked them to consider “whether the government has proven beyond a reasonable doubt” that any records Trump was found to have kept at home were “personal or presidential.” The second told parties to respond to a premise that juries and courts lack the expertise to review or determine whether a president has “sole authority” under the PRA to categorize records as personal.
Trump’s attorneys leaned into their argument that the former president had control over the designation of documents that he is accused of illegally retaining.
“You 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,” Trump’s legal team wrote in its proposed jury instructions. “I instruct you that those declassification decisions are examples of valid and legally appropriate uses of President Trump’s declassification authority while he was President of the United States.”
Trump is charged with 32 counts of violating the Espionage Act, with each count corresponding to a classified document he is alleged to have retained illegally after leaving the Oval Office. He also faces eight counts related to alleged obstruction of officials’ efforts to retrieve the materials and has pleaded not guilty to all the charges.
Meanwhile, Smith gave his strongest indication yet this week of a forthcoming appeal of Cannon’s order, arguing that “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, arguing a jury that is presented with such instructions “would distort the trial.”
Smith has repeatedly emphasized his belief that the PRA is not relevant to the charges against Trump, labeling as “pure fiction” Trump’s claims to have deemed the records seized from his Mar-a-Lago estate personal documents.
The special counsel’s office furthered its point by citing interviews with “numerous high-ranking officials from the White House,” adding that “not a single one had heard Trump say 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.
“To the contrary, every witness who was asked this question had never heard such a thing,” Smith said, adding that Trump’s PRA argument was “concocted more than a year after he left the White House.”
Elie Honig, a legal analyst for CNN, described Smith’s rhetoric as a “prosecutorial temper tantrum.”
“I mean, usually prosecutors are very just-the-facts, very deferential to a judge,” Honig said. “And here we see Jack Smith really expressing his frustration at the judge.”
Meanwhile, a prominent defense attorney who has represented Jan. 6 Capitol riot defendants, Bill Shipley, questioned Smith’s tone and approach to Cannon’s March 18 order, asking, “So now the prosecutor get to decide what the ‘facts’ are Pretrial??”
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Cannon’s request followed a hearing she held over whether the PRA granted Trump broad authority to characterize documents as personal and over Trump’s argument about the “constitutional vagueness” of Smith’s use of the Espionage Act. The judge denied his motion to dismiss on vagueness but has not yet ruled on Trump’s motion to dismiss citing the PRA.
Meanwhile, the prospects of this trial even getting underway by July have significantly diminished in recent days, as Cannon has not yet issued a schedule weeks after prosecutors and the defense presented her with potential options. Cannon previously told prosecutors she considered a late-July trial start unrealistic.