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

Federal prosecutors chided the judge presiding over former President Donald Trump’s classified documents case in Florida, warning her of 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 now is 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, such as the ones Trump is alleged to have stored at his Mar-a-Lago estate in Palm Beach, Florida.

Those records, prosecutors said, were clearly not personal, and they said there is no evidence Trump ever designated them as such. They also said the suggestion that he did so was “invented” only after it became public that, after his presidency, he had taken boxes of records from the White House with him to Mar-a-Lago 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.”

Smith’s team said that if the judge insists on citing the presidential records law in her jury instructions, she should let the lawyers know as soon as possible so that prosecutors can appeal.

The filing reflects continued exasperation by prosecutors at Cannon’s handling of the case.

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 Smith’s team has said features overwhelming evidence could remain unresolved by the time of the presidential election in November.

JACQUELYN MARTIN/AP 2023 Special counsel Jack Smith and his team say U.S. District Judge Aileen Cannon’s request for proposed jury instructions rests on a “fundamentally flawed legal premise.”