Left: Special Counsel Jack Smith. (AP Photo/J. Scott Applewhite, File)/Center: In this image from video provided by the U.S. Senate, Aileen M. Cannon speaks remotely during a Senate Judiciary Committee oversight nomination hearing to be U.S. District Court for the Southern District of Florida on July 29, 2020./Right: Donald Trump speaks with supporters at the Westside Conservative Breakfast, June 1, 2023, in Des Moines, Iowa. AP Photo/Charlie Neibergall, File)
While the judge in the Mar-a-Lago case denied former President Donald Trump’s motion to dismiss his prosecution under the Presidential Records Act (PRA) on Thursday, she did so in a way that nonetheless stuck it to special counsel Jack Smith and, in the opinions of veteran prosecutors, preserved a “potential out” for the defense down the line.
If that sounds familiar, it tracks with how U.S. District Judge Aileen Cannon handled Trump’s motion to dismiss on grounds of the Espionage Act’s “unconstitutional vagueness” in March. Although she denied the motion, she did so without prejudice, meaning the defense could raise arguments again later and “as appropriate in connection with jury-instruction briefing and/or other appropriate motions.” On Thursday, Cannon denied Trump’s motion to dismiss under the PRA, but unloaded on Jack Smith for, in her words, demanding an “unprecedented and unjust” speedy “anticipatory finalization of jury instructions” before a trial with a start date that remains a mystery.
The dispute between the special counsel and Cannon heated up when she ordered the prosecution and the defense on March 18 to file “proposed jury instructions limited to the essential elements” of Trump’s Espionage Act charges and to “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[.]”
Afterwards, Cannon’s legal peers sharply criticized the order as “bizarre,” “bonkers” and “fundamentally unhinged” for seemingly “giving credence” to defense arguments “that are on their face absurd.”
The “competing scenarios,” as Cannon posed them in her March 18 order:
(a) 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).
(b) 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.
The dispute over potential jury instructions came to a head on Tuesday when Smith called the former president’s PRA arguments “fictional,” “invented,” and “legally erroneous.” He pressed Cannon to “promptly” reveal her view of “whether the PRA has an impact on the element of unauthorized possession under Section 793(e)” — and well before “jeopardy attaches” at trial. He insisted that prosecutors “must have the opportunity to consider appellate review” if Cannon “wrongly” decides to “include the PRA in the jury instructions regarding what is authorized under Section 793.”
In other words, the special counsel wanted the judge to definitively decide whether or not she’s going to include a “clearly erroneous jury instruction” so he can appeal the issue right away. He framed the importance of the issue this way:
If, for example, the Court concludes—as posited in Scenario (a) in the Court’s order—that under the Espionage Act a former President is authorized to possess any document that the jury determines qualifies as a personal record as defined by the PRA, that would wrongly present to the jury a factual determination that should have no legal consequence under the elements of Section 793. Likewise, if the Court concludes—as posited in Scenario (b)—that a President has carte blanche to remove any document from the White House at the end of his presidency; that any document so removed must be treated as a personal record under the PRA as an unreviewable matter of law; and that, also as a matter of law, a former President is forever authorized to possess such a document regardless of how highly classified it may be and how it is stored, that would constitute a “clearly erroneous jury instruction that entails a high probability of failure of a prosecution,” Wexler, 31 F.3d at 129, and the Government must be provided with an opportunity to seek prompt appellate review.
Smith also made clear that the “appellate review” he may seek is the “extraordinary remedy” of a writ of mandamus from the U.S. Court of Appeals for the 11th Circuit — something that Cannon’s critics called for weeks ago and are calling for again — to force the judge’s hand.
Judge Cannon just rejected Trump’s bogus Presidential Records Act defense, but only for now. She has (weirdly and pointedly) refused to actually decide the issue, despite Jack Smith’s warning that double jeopardy would then apply. I think Smith has no choice but to go to the 11th… pic.twitter.com/JcQzqOCJEl
— Neal Katyal (@neal_katyal) April 4, 2024
“Judge Cannon just rejected Trump’s bogus Presidential Records Act defense, but only for now. She has (weirdly and pointedly) refused to actually decide the issue, despite Jack Smith’s warning that double jeopardy would then apply. I think Smith has no choice but to go to the 11th Circuit on mandamus. It’s a tough standard, but it is met here,” opined former acting U.S. Solicitor General Neal Katyal, for one.
On Thursday as she dismissed Trump’s motion, Cannon fired back, refused Smith’s demands, accused the special counsel of asking for something “unprecedented and unjust,” and defended her proposed jury instructions exercise as both “genuine” and not indicative of a “final definition.” In short, she denied the motion to dismiss but did not exclude the use of the PRA as a defense at trial.
“Separately, to the extent the Special Counsel demands an anticipatory finalization of jury instructions prior to trial, prior to a charge conference, and prior to the presentation of trial defenses and evidence, the Court declines that demand as unprecedented and unjust,” the judge wrote. “The Court’s Order soliciting preliminary draft instructions on certain counts should not be misconstrued as declaring a final definition on any essential element or asserted defense in this case. Nor should it be interpreted as anything other than what it was: a genuine attempt, in the context of the upcoming trial, to better understand the parties’ competing positions and the questions to be submitted to the jury in this complex case of first impression.”
At the same time, Cannon reminded the Special Counsel’s Office it is “free to avail itself of whatever appellate options it sees fit to invoke, as permitted by law.”
Former federal prosecutor Renato Mariotti remarked that the ruling was something of a judicial sleight-of-hand, rendering Smith’s appellate threats empty for the time being.
“This is important — Judge Cannon refused to make a decision regarding Trump’s absurd Presidential Records Act arguments before the Mar-a-Lago trial begins. By refusing to make a decision, Jack Smith has nothing to appeal,” Mariotti said. “If Cannon instructs the jury incorrectly and Trump is found not guilty as a result, Smith *could not appeal* the not guilty verdict.”
The underlying concern that appears to be shared by Smith is that Cannon’s proposed jury instructions, as written, appeared to embrace a possible path forward to acquittal based on a misstatement of what the law says. In Mariotti’s view, by not catering to Smith’s demands, the Trump-appointed judge is inching closer and closer to creating that scenario.
This is important — Judge Cannon refused to make a decision regarding Trump’s absurd Presidential Records Act arguments before the Mar-a-Lago trial begins.
By refusing to make a decision, Jack Smith has nothing to appeal.
If Cannon instructs the jury incorrectly and Trump is… https://t.co/rnFltSCdqq
— Renato Mariotti (@renato_mariotti) April 4, 2024
Nancy Gertner, a retired federal judge who criticized Cannon before, also joined in calls for the special counsel to go the 11th Circuit.
In comments to Politico, Gertner said Smith “could be without recourse after a trial begins” and must “stop playing games and move to disqualify” Cannon.
Is that realistic at this stage?
In the view of national security lawyer Bradley Moss, it isn’t.
“I think Smith has to try to exclude the PRA defense first through a motion in limine,” he said. “If Cannon denies that route, *then* you seek mandamus relief.”
Moss explained that he would file a motion in limine “and attach a date certain to it, if only to demonstrate to the 11th Cir you exhausted your other remedies before seeking such extraordinary relief.” He was responding to Katyal, who argued that Cannon has shown she will rule on the issue only “after double jeopardy applies.”
“So I would think it makes sense to go to CA11 now, but I see no harm in filing the MIL and saying we intend to go to CA11 by a date certain (in the next few days) if she doesn’t exclude the PRA stuff,” Katyal commented. “The PRA is such a garbage defense, it is beyond laughable that this is taking anyone’s time. CA11 should get its hands on it and reverse quickly.”
But hasn’t Jack Smith repeatedly accused Cannon of “clear error” before? Can’t that be the source of a possible mandamus move? It is true that Smith has already threatened to appeal if Cannon separately refuses to reconsider a “clear error” that could out government witnesses through discovery. Notably, however, the judge has not issued a ruling on that issue either.
So, as questions swirl about what Jack Smith may do, what does Cannon’s order mean?
In the view of one former member of former special counsel Robert Mueller’s team, Trump lost a battle but didn’t lose the war, thanks to Cannon’s ruling. In a thread on X, Brandon Van Grack expressed the view that Cannon left Trump’s defense with a “potential out.”
My interpretation of Judge Cannon’s order—in light of her request for jury instructions, brevity of her order, and measured language—is she rejected former President’s main claim that would’ve been dispositive but reserved judgment on if a record being “personal” is a defense ? https://t.co/WlsjljiXxr
— Brandon Van Grack (@BVanGrack) April 4, 2024
Van Grack said that Cannon’s dismissal of Trump’s motion rejected the second scenario she posed in her jury instructions order but left open the first scenario by reserving “judgment on if a record being ‘personal’ is a defense.”
“DOJ noted the second scenario should lead to dismissal in this case and granting of the motion to dismiss. Both parties agreed on that point. So by denying the motion, she is rejecting scenario two,” he said. “However, scenario one is still in play. The question is: Is there evidence that the records were ‘personal.’ DOJ notes there is no evidence defendant ever declared them to be ‘personal’ and there is no reason to think they are in fact ‘personal.””
Still, Van Grack said, Cannon “preserved the option of still presenting scenario one to the jury—in particular if at trial there is evidence that they are ‘personal’ or the defendant declared them to be ‘personal.’”
“Such an instruction would not be fatal to DOJ’s case—as it notes, there is no evidence that they are or were ever declared to be ‘personal,’” he concluded. “But it does leave defendant with a potential out.”
Have a tip we should know? [email protected]
