Special counsel Jack Smith strongly criticized a recent order by the judge presiding over the case of former President Donald Trump’s alleged mishandling of classified documents, saying that her request for jury instructions from his office and Trump’s lawyers is based on a “fundamentally flawed legal premise.”
In a court filing Tuesday, Smith argued that the legal premise behind Judge Aileen Cannon’s request is “wrong” and that it would “distort” the trial, potentially leading to a directed verdict in Trump’s favor. The special counsel urged Cannon to “promptly” decide whether the legal premise in question represents a “correct formulation of the law,” and indicated that federal prosecutors would appeal if the judge rules against them.
Cannon last month directed Trump and the special counsel to submit jury instructions framed with two competing scenarios concerning the Presidential Records Act as it relates to the charges brought against Trump under the Espionage Act accusing him of mishandling of classified documents.
The first scenario Cannon outlined allows the jury to review records and determine which documents Trump retained are “personal” or “presidential” under the Presidential Records Act. In the second scenario, Cannon instructed lawyers to draft instructions based on the assumption that presidents have the “sole authority” under that act to lawfully retain documents at the end of their term by declaring them as “personal” or “presidential” records, aligning with Trump’s defense in the case.
“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 determines whether a former President is ‘authorized,’ under the Espionage Act to possess highly classified documents and store them in an unsecure facility,” Smith’s team wrote in the filing.
