Special Counsel Jack Smith, shown here in August 2023, said Judge Aileen M. Cannon’s instructions were based on a “fundamentally flawed legal premise” and warned he may appeal her ruling. (Department of Justice)
Special counsel Jack Smith warned the judge overseeing Donald Trump’s classified documents case that she is pursuing a legal premise that “is wrong” and said he would probably appeal to a higher court if she rules that a federal records law can protect the former president from prosecution.
In a near-midnight legal filing, Smith’s office pushed back hard against an unusual instruction from U.S. District Judge Aileen M. Cannon — one that veteran national security lawyers and former judges have said badly misinterprets the Presidential Records Act and laws related to classified documents.
Smith’s filing represents the most stark and high-stakes confrontation yet between the judge and the prosecutor, illustrating the extent to which a ruling by Cannon that legitimizes the PRA as a defense could eviscerate the historic case. It sets up the possibility that a government appeal of such a ruling could delay the trial well beyond November’s presidential election, in which Trump is the presumptive Republican nominee.
Last month, Cannon ordered defense lawyers and prosecutors in the case to submit hypothetical jury instructions based on two different, and very much contested, readings of the PRA.
In response, Smith said Cannon was pursuing a “fundamentally flawed legal premise” that the law somehow overrides Section 793 of the Espionage Act, which Trump is accused of violating by stashing hundreds of classified documents at Mar-a-Lago, his Florida home and private club, after his presidency ended.
“That legal premise is wrong, and a jury instruction for Section 793 that reflects that premise would distort the trial,” Smith wrote. The Presidential Records Act, he said, “should not play any role at trial at all.”
How Cannon, a Trump nominee who has been on the bench since late 2020, responds to Smith’s proverbial shot across the bow will be critical. If she rules against the prosecutor, he could appeal. If she retreats from the disputed legal premise, the issue could fade into the background as she decides a pretrial hearing schedule and sets a trial date.
Cannon has been slow to make a number of decisions, even as prosecutors have urged her to move quickly, and it’s possible that on this issue too, she simply takes time to make her next move. In the meantime, Trump is scheduled to stand trial starting April 15 in a New York state case accusing him of falsifying business records to cover up a hush money payment during the 2016 election. Two other criminal cases, related to Trump’s alleged efforts to block Joe Biden’s 2020 election victory, are mired in pretrial proceedings and appeals.
Tuesday night’s filing urged Cannon to rule quickly on whether the Presidential Records Act is relevant to the case, so that prosecutors can appeal any such determination to a higher court before the Florida trial, which is delayed from its original late May start date but has not yet been rescheduled.
Smith, who like many legal scholars has said the records act has nothing to do with the national security crimes Trump is accused of committing, warned that waiting until the trial is underway to rule on the issue could doom the prosecution case before it ever gets to a jury.
“If the Court were to defer a decision on that fundamental legal question it would inject substantial delay into the trial and, worse, prevent the government from seeking review before jeopardy attaches,” he wrote.
Even as he questioned the premise of Cannon’s order, Smith complied with it, offering proposed jury instructions for the two legal scenarios she outlined. Smith’s proffered language, however, was couched in a kind of lawyerly attack on Cannon’s legal analysis.
“[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,” Smith wrote in the proposed jury instruction.
“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,’ within the meaning of the Presidential Records Act (PRA).”
Trump has pleaded not guilty to 32 charges of violating the Espionage Act, with each count corresponding to a specific classified document that he is alleged to have retained after leaving office, as well as eight additional charges of obstructing government efforts to retrieve the materials. His lawyers argue that the former president had the authority under the PRA to declare even highly classified documents to be his personal records and property.
Prosecutors and legal experts have said such claims badly misstate the law, which says that presidential records belong to the public and are to be turned over to the National Archives and Records Administration at the end of a presidency. Legal experts say Cannon’s focus on jury instructions seems odd at this stage of the process because a trial is not imminent and the judge still has a number of decisions to make in the pretrial proceedings before the instructions are relevant. They also say the premise of Cannon’s orders indulged some mangled interpretations of laws that have been pushed by Trump’s lawyers and supporters.
Trump’s team said in its own late-night filing that Cannon’s assignment is consistent with Trump’s position that the “prosecution is based on official acts” he took as president — not illegal retention of materials.
The judge told lawyers to write jury instructions for two legal interpretations. Legal experts said she could use those instructions to help inform her eventual ruling on a request that Trump made to dismiss the case because the PRA allowed him to designate any presidential record as personal.
In one scenario, Cannon asked them to craft jury instructions that assume the PRA allows presidents to designate any documents as personal at the end of a presidency — which is what Trump’s legal team has argued he had the authority to do. She then said they should also write separate jury instructions predicated on the idea that jurists would be able to determine which of the documents Trump is accused of illegally retaining are personal and which are presidential.
The government has said it is the Espionage Act — not the PRA — that guards classified materials. Trump is not charged with violating the PRA, and prosecutors said throughout their filing that the PRA should not be in those instructions.
“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,” Smith wrote. “Indeed, based on the current record, the PRA should not play any role at trial at all.”
In their proposed jury instructions, Trump’s attorneys leaned into their argument that the former president had the ultimate authority to determine the designation of the documents that he is accused of illegally retaining.
“You heard evidence during the trial that President Trump exercised that authority, at times verbally and at times without using formal procedures, while he was President,” Trump’s legal team wrote in the hypothetical jury instructions. “I instruct you that those declassification decisions are examples of valid and legally appropriate uses of President Trump’s declassification authority while he was President of the United States.”
Cannon held a hearing over a month ago to determine a new date for the classified documents trial. Prosecutors sought a date in early July, Trump’s lawyers asked to wait until after the election, or schedule the trial to start in August at the earliest. The judge has not yet ruled.
She issued her jury instruction order a few days after a different hearing, held March 14, at which she heard arguments on two of Trump’s motions to toss out the case.
One of those motions said the case should be dismissed because the PRA meant that Trump could simply declare highly classified documents to be his personal property and keep them at Mar-a-Lago. Cannon has not yet ruled on that motion.
Hours after the hearing, she rejected Trump’s other motion to dismiss. It argued that the Espionage Act, which has been used for decades to convict others of improperly possessing classified documents, was too vaguely worded to be used in his indictment.
