OPINION: This article may contain commentary which reflects the author's opinion.
Special Counsel Jack Smith and Aileen Cannon, the Trump-appointed judge presiding over the former president’s classified documents case in Florida, are on a collision course.
In a desperate move, Smith filed an appeal essentially demanding Judge Cannon to decide jury instructions concerning the President Records Act (PRA).
Former President Donald Trump has maintained that the PRA gave him the right to declassify any documents discovered at Mar-a-Lago, including some that contained secrets related to national security.
Smith claims that a “fundamentally flawed legal premise” underlies Judge Cannon’s request for competing jury instructions.
Smith claims that if Judge Cannon concurs with the former president that the PRA does not distinguish between official records and private property, he would be able to file an appeal and request an immediate review. He goes on to say that such instructions would “distort the trial” if the case proceeds to trial.
“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 said in the filing. “Indeed, based on the current record, the PRA should not play any role at trial at all.”
“Furthermore, Trump’s entire effort to rely on the PRA is not based on any facts,” Smith continues. “Instead he has attempted to fashion out of whole cloth a legal presumption that would operate untethered to any facts — without regard to his actual decisions, his actual intent, the unambiguous definition of what continues personal records under the PRA, or the plainly non-personal content of the highly classified documents he retained.”
“There is no basis in law or fact for that legal presumption, and the Court should reject Trump’s effort to invent one as a vehicle to inject the PRA into this case,” he concludes.
JUST IN: An extraordinary filing from Jack Smith tonight that is almost incredulous at how legally incorrect Judge Cannon’s jury instruction scenarios are re: Trump’s claim that he designted reams of classified info as “personal” on the way out of the WH.https://t.co/lmmI1dvWDb pic.twitter.com/grnmBsGwJC
— Kyle Cheney (@kyledcheney) April 3, 2024
According to legal experts, Smith’s argument was a critical moment that could either make or break the special counsel’s case.
“Jack Smith just threw down the gauntlet,” wrote former federal prosecutor Renato Mariotti. By asking Judge Cannon to rule now, he wrote on X, Smith cautions her to “avoid a miscarriage of justice at trial.”
Jack Smith just threw down the gauntlet, threatening to *immediately appeal* if Judge Aileen Cannon rules that the Presidential Records Act gave Trump the right to remove and keep classified material.
He asks her to rule *now* to avoid a miscarriage of justice at trial. https://t.co/Ymku55OFMs
— Renato Mariotti (@renato_mariotti) April 3, 2024
If she didn’t rule until the trial started, it could create a potential that the jury could find Trump *not guilty* based on an improper jury instruction that falsely states the law.
Prosecutors can’t appeal not guilty verdicts. That’s why Smith wants her to rule before trial.
— Renato Mariotti (@renato_mariotti) April 3, 2024
“To make this crystal clear, if trial begins and Judge Cannon makes a ruling that is legally erroneous *in the middle of the trial*, resulting in a not guilty verdict, prosecutors *cannot* appeal the verdict,” he explained. “That’s why Jack Smith wants a ruling before trial, so he can appeal.”
National security attorney Bradley Moss said the Smith filing “puts Cannon on notice that he has had enough.”
“The PRA angle is a question of law, not fact, and if she believes Trump’s PRA defense she should grant his motion and let Smith take this to the 11th circuit already,” he wrote.
Jack Smith puts Cannon on notice that he has had enough with his weird game. The PRA angle is a question of law, not fact, and if she believes Trump’s PRA defense she should grant his motion and let Smith take this to the 11th circuit already.
Oh, and they make clear Tom Fitton https://t.co/sULQndnM2T
— Bradley P. Moss (@BradMossEsq) April 3, 2024
According to the Daily Beast, Smith faced a humiliating setback last month when Judge Cannon threatened to dismiss the case unless he essentially turned over all classified materials to the defense team.
Essentially, Smith faces the possibility that the jury would exonerate Trump due to a dearth of proof that anything he possessed was truly classified, or else a jury of ordinary citizens will have the opportunity to examine the documents.
“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,” Judge Cannon wrote in March.
In the event that Smith files an appeal with the Eleventh Circuit Court of Appeals, he will still have to deal with yet another trial postponement in a case that observers already predict will go past the 2024 election—a scenario that the prosecution has long aimed to prevent.
In connection with the Capitol riots on January 6, 2021, the Justice Department is prosecuting President Trump in Washington, D.C., while local prosecutors in New York and Georgia have launched their own criminal cases against the outgoing leader. Now, in addition to all the other cases, Smith’s schedule needs to account for the possibility of an appeal of Judge Cannon’s most recent ruling.
He must also take into consideration a number of delays in the timelines for discovery as well as chances for Trump’s legal team to cross-examine each of the 84 witnesses that the prosecution claims they plan to call.
