In Washington, federal prosecutors expressed disapproval towards the judge overseeing the case concerning former President Donald Trump’s classified documents in Florida, cautioning her against potential jury instructions based on what they called a “fundamentally flawed legal premise.”
U.S. District Judge Aileen Cannon issued an uncommon order requesting prosecutors and defense attorneys to develop suggested jury instructions for most of the charges, despite uncertainty around the trial timeline. She asked them to address two scenarios, seemingly accepting the argument put forth by the former president that he was entitled to retain sensitive documents under the Presidential Records Act.
The order surprised legal experts and concerned special counsel Jack Smith’s team, who stated in a filing on Tuesday that the 1978 law, which mandates presidents to return presidential records to the government upon leaving office but allows retention of purely personal ones, is irrelevant in a case involving highly classified documents allegedly stored by Trump at his Mar-a-Lago estate in Palm Beach, Fla.
The prosecutors asserted that these records were evidently not personal, and there is no evidence that Trump designated them as such. They claimed that the suggestion was “invented” after it became public that he had taken boxes of records from the White House to Mar-a-Lago after his presidency, and none of the witnesses interviewed in the investigation support his argument.
Prosecutors wrote that “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.” They emphasized that every witness asked about this had never heard such a statement.
Smith’s team suggested that if the judge insists on referencing the presidential records law in the jury instructions, she should inform the lawyers promptly so that prosecutors can file an appeal.
The filing reflects ongoing frustration by prosecutors with Cannon’s management of the case.
The Trump-appointed judge has not yet ruled on several defense motions to dismiss the indictment or other disagreements between the two sides, and the trial date remains uncertain. This suggests that the criminal case, which Smith’s team says has overwhelming evidence, may not be resolved by the November presidential election.
Cannon, who had previously faced harsh criticism for granting Trump’s request for an independent arbiter to review documents from an FBI search of Mar-a-Lago, heard arguments last month on two of Trump’s motions to dismiss the case, including the claim that the Presidential Records Act allowed him to designate the documents as personal and retain them.
The judge seemed doubtful of that stance but did not make an immediate decision. Shortly after, she asked the two sides to create jury instructions in response to the 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 previous president decided not to give back some of his personal records to the government, saying those records are personal according to the PRA.
Prosecutors disagreed with that understanding of the law. They also asked Cannon to quickly reject the defense's motion to dismiss.
They said that the PRA's difference between personal and presidential records doesn't matter when it comes to a former President having documents with national defense information, as stated in the Espionage Act. They also mentioned that the PRA should not have any role in the jury instructions.
Based on the current record, they added that the PRA should not be involved in the trial at all.
Trump, who is expected to be the Republican nominee for 2024, is facing numerous felony charges related to mishandling classified documents, including sharing a Pentagon plan and a classified map. He is involved in four criminal cases and maintains his innocence in all of them.
In a separate filing, Trump's defense team again asked Cannon to dismiss the indictment.
