Special Counsel Jack Smith rebuked the judge overseeing former President Donald Trump’s classified documents case on Tuesday for making a request he said rests on a “fundamentally flawed legal premise.”
Judge Aileen Cannon instructed both parties to file proposed jury instructions engaging with two scenarios involving the Presidential Records Act and its distinction between personal and presidential records. Smith said in his response that accepting the legal premise in the scenarios would be “pure fiction” and that the resulting jury instructions would “distort the trial.”
“The Court should be aware at the outset that Trump’s entire effort to rely on the PRA is not based on any facts,” Smith wrote. “It is a post hoc justification that was concocted more than a year after he left the White House, and his invocation in this Court of the PRA is not grounded in any decision he actually made during his presidency to designate as personal any of the records charged in the Superseding Indictment.”
This is why Smith is so angry–he knows if Cannon proceeds with the proposed scenario presented in her jury instructions order, he is, as one defense attorney told me at the time, f*cked.
He essentially demands that she rule now on jury instructions (she doesn’t have to) or… pic.twitter.com/765SfIDygK
— Julie Kelly
(@julie_kelly2) April 3, 2024
Cannon’s first scenario stated that a jury is “permitted to examine a record retained by a former president in his/her personal possession at the end of his/her presidency and make a factual finding as to whether the government has proven beyond a reasonable doubt that it is personal or presidential using the definitions set forth in the Presidential Records Act (PRA).”
The second scenario said that “a president has sole authority under the PRA to categorize records as personal or presidential during his/her presidency” and that a court cannot “review such a categorization decision.”
Smith wrote that jury instructions based on the second scenario put forward by Cannon “would amount to nothing more than a recitation of Trump’s PRA defense as presented in his motion to dismiss and would result in directing a verdict against the Government.”
Trump argued in a motion to dismiss that the Presidential Records Act “precludes judicial review of the President’s recordkeeping practices and decisions.”
Smith told Cannon she should “deny Trump’s pending motion to dismiss and adopt preliminary jury instructions as proposed by the Government.”
“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,” he wrote.
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