Pittsburgh Post-Gazette

Prosecutor­s in Trump’s classified documents case rebuke judge’s unusual, ‘flawed’ order

- By Eric Tucker

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.

 ?? Mike Roemer/Associated Press ?? Federal prosecutor­s on Tuesday night told the judge overseeing former President Donald Trump’s classified documents case that a “fundamenta­lly flawed” order she had issued was causing delays.
Mike Roemer/Associated Press Federal prosecutor­s on Tuesday night told the judge overseeing former President Donald Trump’s classified documents case that a “fundamenta­lly flawed” order she had issued was causing delays.

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