Special Counsel Jack Smith confronted Trump-appointed Judge Aileen Cannon in a blistering new filing over her order requesting jury instructions incorporating former President Donald Trump’s mistaken defense legal basis.
Smith and his team have been at odds with Cannon over a host of issues, and critics of the judge have suggested she is delaying the case in order to benefit the man who appointed her.
That frustration was evident in Smith’s response to an order by Cannon to submit proposed jury instructions that consider “competing scenarios and offer alternative draft text that assumes each scenario to be a correct formulation of the law to be issued to the jury” — scenarios Smith says are fatally flawed.
In the opening paragraphs of Smith’s response, he criticizes the judge’s order and warns of “appeal” if she follows this path:
The Court has issued an order (ECF No. 407) directing the parties to file preliminary proposed jury instructions and verdict forms for Counts 1-32 of the Superseding Indictment, with a specific requirement that the parties “engage with [two] competing scenarios and offer alternative draft text that assumes each scenario to be a correct formulation of the law to be issued to the jury.” Both scenarios rest on an unstated and fundamentally flawed legal premise—namely, that the Presidential Records Act (“PRA”), and in particular its distinction between “personal” and “Presidential” records, see 44 U.S.C. § 2201 (2), (3), determines whether a former President is “[]authorized,” under the Espionage Act, 18 U.S.C. § 793(e), to possess highly classified documents and store them in an unsecure facility, despite contrary rules in Executive Order (“EO”) 13526, which governs the possession and storage of classified information.
That legal premise is wrong, and a jury instruction for Section 793 that reflects that premise would distort the trial. 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 on the elements of Section 793. See ECF No. 373 at 5-12. Indeed, based on the current record, the PRA should not play any role at trial at all.
Moreover, it is vitally important that the Court promptly decide whether the unstated legal premise underlying the recent order does, in the Court’s view, represent “a correct formulation of the law.” ECF No. 407 at 2. If the Court wrongly concludes that it does, and that it intends to include the PRA in the jury instructions regarding what is authorized under Section 793, it must inform the parties of that decision well in advance of trial. The Government must have the opportunity to consider appellate review well before jeopardy attaches.
Smith then adds some serious attitude when he writes the proposed jury instructions ordered by Cannon, using the phrase “The Jury Is Incorrectly Instructed” for those scenarios, and quite another for his own proposed jury instruction:
The Jury Is Correctly Instructed that Unauthorized Possession Is Based on Executive Order 13526, Not on the PRA.
The Government’s proposed preliminary instruction for Counts 1 through 32 is as follows:10 Counts 1-32: Willful Retention of National Defense Information 18 U.S.C. § 793(e)
Counts 1 through 32 of the Superseding Indictment charge defendant Trump with the willful retention of national defense information in violation of Title 18 of the United States Code, Section 793(e). The statute provides, in pertinent part: “[w]hoever having unauthorized possession of . . . any document . . . relating to the national defense . . . willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it,” commits a crime.
Smith concludes with a parting shot threatening appeal, writing “For the reasons set forth above and in the Government’s opposition to Trump’s motion to dismiss based upon the PRA, the Court should reject the legal premise that the PRA’s distinction between personal and presidential records has any bearing on the element of unauthorized possession under Section 793(e). As such, it should deny Trump’s pending motion to dismiss and adopt preliminary jury instructions as proposed by the Government above. If, however, the Court does not reject that erroneous legal premise, it should make that decision clear now, long before jeopardy attaches, to allow the Government the opportunity to seek appellate review.”
