U.S. District Judge Aileen Cannon is at it again.
Her latest weird move in Donald Trump’s classified documents case involves jury instructions. That may sound like a mundane subject but it’s quite important, because these instructions are what a jury will use to consider whether special counsel Jack Smith has proved his case beyond a reasonable doubt. (That is, if the Trump-appointed judge ever sets a trial date and a trial actually happens.)
The problem is that Cannon is apparently contemplating instructions that could effectively win Trump’s case for him, regardless of how strong the evidence against him is. To understand why, recall that the judge’s latest move comes against the backdrop of Trump’s claim that, under the Presidential Records Act, he could have deemed whatever sensitive government records he wanted to as “personal” and then taken them with him from the White House, precluding the government from prosecuting him over the retention. It’s a nonsensical position that Cannon could have rejected outright, but she chose to hold a hearing on it last week.
And now, in an order Monday, she told the parties to submit proposed jury instructions related to the charges alleging that Trump unlawfully retained national defense information. (The order doesn’t address the obstruction-related counts.) The Presidential Records Act shouldn’t factor into determining whether Trump’s conduct was criminal, but Cannon’s order nonetheless laid out two “competing scenarios” for the prosecution and the defense as they fashion their proposals. The first one is:
In a prosecution of a former president for allegedly retaining documents in violation of 18 U.S.C. § 793(e), 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).
And the second one is:
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 permitted to make or review such a categorization decision. Although there is no formal means in the PRA by which a president is to make that categorization, an outgoing president’s decision to exclude what he/she considers to be personal records from presidential records transmitted to the National Archives and Records Administration constitutes a president’s categorization of those records as personal under the PRA.
Neither “scenario” is recognized under the law. At the very least, both risk confusing the jury as to its proper role. The second one, especially, could throw the case in Trump’s favor. Again, the PRA doesn’t insulate Trump or anyone else from criminal charges, so this is an unnecessary detour at best. But Cannon has either injected the issue into the trial or is seriously considering doing so.
The proposed instructions are due from Trump and Smith by April 2. Trump’s lawyers probably want to say, “Looks great,” while Smith’s team probably wants to say, “Looks nuts.” We’ll have to see how the parties translate their reactions into legal language, how Cannon responds and, depending on how she does, whether Smith decides this is the last straw that finally warrants taking her up on appeal to try and salvage the case.
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