Aileen Cannon
The situation in South Florida is coming to a head this week, with prosecutors squaring off for a fight with Judge Aileen Cannon in the Trump documents case. In a bruising, late-night filing, Special Counsel Jack Smith openly mocked the court’s mangling of the Presidential Records Act (PRA) while threatening to seek mandamus if she keeps playing Calvinball.
The prosecution’s saber rattling came in response to a March 18 order requesting that the parties submit proposed jury instructions which “engage with the following 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, while reserving counterarguments.”
What followed was a wild distortion of the relevant statutes, which would have all but guaranteed Trump’s acquittal. The first scenario subordinated the provisions of the Espionage Act (18 USC § 793(e)) to the PRA, on the theory 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.” This would also appear to contemplate showing classified evidence to jurors, without regard for the provisions of the Classified Information Procedures Act (CIPA).
The court’s second proposal was even crazier, apparently conceding Trump’s declassification and personalization by theft theory of the case:
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.
“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,” the special counsel responded.
“That legal premise is wrong, and a jury instruction for Section 793 that reflects that premise would distort the trial,” he went on. “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.”
The special counsel also reminds Her Honor that the last time she got creative, she got humiliatingly slapped down by the appeals panel.
“The implausibility of Trump’s fiction was also readily apparent to the Eleventh Circuit,” he reminds her, quoting the appellate court’s ruling that “Plaintiff does not have a possessory interest in the documents at issue, so he does not suffer a cognizable harm if the United States reviews documents he neither owns nor has a personal interest in.”
AHEM.
The prosecution demands speedy resolution of the matter to provide it “the opportunity to consider appellate review well before jeopardy attaches.”
Indeed this has been the nightmare scenario put forth by former federal prosecutor Mitchell Epner on (my show) Law and Chaos and by Lawfare’s Roger Parloff: Judge Cannon will do something outrageous to throw the case, but she’ll do it after jeopardy has attached, when it’s too late for the government to do anything about it.
The government goes on to note that Trump conceded multiple times that the documents he stole from the White House were presidential records, until that spandex-shirted weirdo Tom Fitton from Judicial Watch — whom the government sneeringly notes is “not an attorney” — started whispering nonsense about the “Socks Case” into Trump’s ear in the summer of 2022. Trump himself referred to them as “Presidential Records” when he returned the first 15 boxes, as did his lawyer Evan Corcoran in a letter to the DOJ that May.
FFS, the man is on tape waving around a war plan in July of 2021 and bragging to his campaign manager that it’s classified, so she shouldn’t look too close.
Calling the defense a “post hoc justification that was concocted more than a year after he left the White House,” the government adds that “there is no colorable argument that any of the documents charged in the Superseding Indictment is a personal record under the PRA—i.e., a document ‘of a purely private or nonpublic character which do[es] not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.’”
Forced to craft jury instructions that would be clearly erroneous, the government resorted to blatant snark:
[E]ven if an individual holds a security clearance and has a need to know classified information, the individual’s possession of the classified information is unauthorized if the individual removes the classified information from a secure facility or possesses the information outside of a secure facility.
I instruct you, however, that, as to a former President, even if he lacks a security clearance, lacks a need to know classified information, and stores information outside of a secure facility, he is authorized to do so if the classified information is contained within a “personal record,” as that term is defined by the Presidential Records Act (PRA), a statute that establishes the public ownership of presidential records and ensures the preservation of presidential records for public access after the termination of a President’s term in office.
Epner, who suggested that the special counsel might simply refuse to comply with the court’s instruction, praised the prosecutor for threading the needle.
“Jack Smith figured out a way to brief the issue without taking a contempt,” he said. “He is threatening to seek mandamus from Eleventh Circuit, if Judge Cannon continues down this ridiculous path.”
Say a prayer for those poor, remaining Cannon law clerks. They’re about to have a very bad week.
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.
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