Federal prosecutors criticized the judge overseeing former President Donald Trump’s case with secret documents in Florida, cautioning her against potential jury instructions based on a “fundamentally flawed legal premise.”
In an unusual move, U.S. District Judge Aileen Cannon asked prosecutors and defense lawyers to create proposed jury instructions for most of the charges even though it's unclear when the case might go to trial. She asked the lawyers to respond to two scenarios where she seemed to accept the ex-president’s argument that he was entitled under the Presidential Records Act to keep the sensitive documents he is charged with possessing.
The order surprised legal experts and worried special counsel Jack Smith’s team, who stated in a filing late Tuesday that the 1978 law — which requires presidents to return presidential records to the government upon leaving office but allows them to keep purely personal ones — is irrelevant in a case involving highly classified documents like the ones Trump is accused of having at his Mar-a-Lago estate in Palm Beach, Florida.
Prosecutors said those records were clearly not personal, and there is no evidence Trump ever designated them as such. They said the suggestion he did so was “invented” only after it became public that he had taken boxes of records from the White House to Mar-a-Lago after his presidency, 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 inform the lawyers promptly so that prosecutors can appeal.
The filing reflects continued frustration by prosecutors at Cannon’s handling of the case.
The judge, appointed by Trump, has not yet ruled on multiple defense motions to dismiss the indictment or other disagreements between the two sides, and the trial date remains uncertain, indicating 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 previously received harsh criticism for granting 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, one of which is that the Presidential Records Act allowed him to designate the documents as personal and therefore retain them.
The judge seemed doubtful of that position but did not immediately make a ruling. Days later, she asked the two sides to create jury instructions that addressed 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 allowed to make or review such a categorization decision.”
The decision of the outgoing president to keep personal records instead of returning them to the government shows the president sees those records as personal under the PRA.
Prosecutors said that understanding of the law is incorrect, and they also asked Cannon to quickly reject the defense motion to dismiss.
They said that the PRA's difference between personal and presidential records doesn't matter for whether a former President's possession of documents with national defense information is allowed under the Espionage Act, and the PRA should not affect the jury instructions on Section 793, a law that makes it a crime to illegally keep national defense information.
Based on the current record, they added that the PRA should not have any role in the trial at all.
Trump, who is expected to be the Republican nominee for 2024, is facing many felony charges related to mishandling classified documents. He's accused of improperly sharing a Pentagon “plan of attack” and a classified map related to a military operation. There are four criminal cases against the former president, who has claimed innocence in all of them.
In another filing from Trump's team, defense lawyers repeated their demand that Cannon dismiss the indictment.
