Prosecutors in Trump’s classified documents case rebuke judge’s unusual, ‘flawed’ order
WASHINGTON — Federal prosecutors chided the judge presiding over former President Donald Trump’s classified documents case in Florida, warning her off potential jury instructions that they said rest on a “fundamentally flawed legal premise.”
In an unusual order, U.S. District Judge Aileen Cannon had asked prosecutors and defense lawyers to formulate proposed jury instructions for most of the charges even though it remains unclear when the case might reach trial. She asked the lawyers to respond to two different scenarios in which she appeared to accept the Republican ex-president’s argument that he was entitled under a statute known as the Presidential Records Act to retain the sensitive documents he is now charged with possessing.
The order surprised legal experts and alarmed special counsel Jack Smith’s team, which said in a filing late Tuesday that the 1978 law — which requires presidents to return presidential records to the government upon leaving office but permits them to retain purely personal ones — has no relevance in a case concerning highly classified documents like the ones Mr. Trump is alleged to have stored at his Mar-a-Lago estate in Palm Beach, Fla.
Those records, prosecutors said, were clearly not personal and there is no evidence Mr. Trump ever designated them as such. They said that the suggestion he did so was “invented” only after it became public that he had taken with him to Mar-a-Lago after his presidency boxes of records from the White House and that none of the witnesses they interviewed in the investigation support his argument.
“Not a single one had heard Trump say that he was designating records as personal or that, at the time he caused the transfer of boxes to Mar-a-Lago, he believed that his removal of records amounted to designating them as personal under the PRA,” prosecutors wrote. “To the contrary, every witness who was asked this question had never heard such a thing.”
The Trump- appointed judge has yet to rule on multiple defense motions to dismiss the indictment as well as other disagreements between the two sides, and the trial date remains unsettled, suggesting that a criminal case that Mr. Smith’s team has said features overwhelming evidence could remain unresolved by the time of the November presidential election.
Judge Cannon, who earlier faced blistering criticism over her decision to grant Mr. Trump’s request for an independent arbiter to review documents obtained during an FBI search of Mar-a-Lago, heard arguments last month on two of Mr. Trump’s motions to dismiss the case, including that the Presidential Records Act permitted him to designate the documents as personal and that he was therefore permitted to retain them.
The judge appeared skeptical of that position but did not immediately rule. Days later, she asked the two sides to craft jury instructions that responded to the following premise: “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.”
An outgoing president’s decision to exclude personal records from those returned to the government, she continued, “constitutes a president’s categorization of those records as personal under the PRA.” That interpretation of the law is wrong, prosecutors said. They also urged Judge Cannon to move quickly in rejecting the defense motion to dismiss.