Smith calls judge’s jury instructions ‘wrong’
Special counsel’s team in Trump docs case seeks ruling
Federal prosecutors argued Tuesday that U.S. District Judge Aileen Cannon’s proposed jury instructions are “flawed” and “wrong” in former President Donald Trump’s trial on charges he hoarded classified documents after leaving the White House.
Justice Department special counsel Jack Smith urged Cannon to rule quickly on the jury instructions and on her view of whether Trump can be charged under the Espionage Act. Trump contends the law doesn’t apply to him, and Smith threatened to appeal if Cannon rules in the former president’s favor interpreting the law.
The dispute is about what role the Presidential Records Act plays in the case. Trump contends he converted the classified records to personal records under the act as he carted them to Mar-a-Lago at the end of his administration. But Smith argues Trump told no one of the decision and it wouldn’t matter if he did because the act doesn’t govern classified documents.
Trump’s and Smith’s replies filed Monday were in response to Cannon proposing two jury instructions that basically followed the former president’s argument. One potential instruction would have told jurors that they and the court had no power to review Trump’s decision to keep the records.
“That legal premise is wrong, and a jury instruction for (the Espionage Act) that reflects that premise would distort the trial,” Smith wrote in his filing. “Indeed, based on the current record, the PRA should not play any role at trial at all.”
Trump’s lawyers, Todd Blanche and Christopher Kise, repeated their request to Cannon to throw out the charges under the Espionage Act as too vague. They argued any jury instructions would require “judicial gloss” and therefore the law as applied to Trump would be “unconstitutionally vague and ‘no law at all.’ ”
“Setting aside the vagueness problem, (the statute) remains on the books, but it does not prohibit the conduct alleged by the Office against President Trump,” Blanche and Kise wrote.
Cannon has rejected the vagueness argument once but has no deadline to decide on jury instructions.
Smith has asked her to decide “promptly” for a potential appeal, to avoid having her reject his argument during the trial, when it could upend the entire case.
Cannon’s request for both sides to “engage” with two possible jury instructions came after a hearing in which she didn’t resolve the dispute over whether the documents fell under the Presidential Records Act.
In one proposed instruction, Cannon said jurors should “make a factual finding as to whether the government had proven beyond a reasonable doubt” the records are personal or presidential.