Cannon order following Trump jury instructions, PRA baffles legal experts

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Lawyers and former judges said they are baffled by an order issued this week by the federal judge overseeing Donald Trump’s pending trial on charges of mishandling classified documents, and believe his instructions suggest the case will not go to trial in the short term.

“In my 30 years as a trial judge, I have never seen an order like this,” said Jeremy Fogel, who served on the federal bench in California and now directs the Berkeley Judicial Institute.

The Monday in the afternoon, U.S. District Judge Aileen M. Cannon ordered Defense attorneys and prosecutors in the case filed presentations outlining proposed jury instructions based on two scenarios, each of which misrepresents the law and facts of the case, according to legal experts.

She has given the parties two weeks to craft jury instructions on competing interpretations of the Presidential Records Act, often called the PRA. While the law says presidential records belong to the public and must be turned over to the National Archives and Records Administration at the end of the presidency, Trump’s lawyers have argued that the PRA gave Trump the right to retain materials classified as his personal property.

“What he has asked the parties to do is very, very troubling,” Nancy Gertner, a former federal judge in Massachusetts, said of Cannon. “She is giving credence to arguments that at first glance are absurd. “She is ignoring a series of other, equally absurd, motions that are unjustifiably delaying the case.”

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Trump’s team has argued that, according to the PRA, he automatically designated the classified records he is accused of intentionally withholding as personal documents when he took them out of the White House and took them to Mar-a-Lago, his home and private club in Florida. Prosecutors and legal experts rejected Trump’s interpretation, saying the former PRA chairman’s interpretation is simply incorrect.

Cannon is presiding over a case involving the first former president of the United States to be charged with a crime, and Fogel said it is not inappropriate for a judge in that situation to seek guidance. Still, he said, Cannon’s order is an unusual way to sequence legal decisions and she may be putting “the cart before the horse.”

Typically, he said, judges make their decisions on the core laws of the case and then determine jury instructions as trial time approaches.

“The most innocent interpretation is that she is simply trying to get a sense of what the practical implications are if she decides one way or another on the legal issues,” Fogel said. “The less charitable view is that she should decide the legal issues first and then decide how she should implement the law in the case.”

Canyon held a hearing weeks ago to discuss when to schedule the trial, one of four criminal cases he faces as he seeks the White House again and has secured enough delegates for the Republican nomination. Cannon has yet to make a decision on a trial date.

Last week’s hearing focused on two requests Trump made to dismiss the case, one based on alleged flaws in the Espionage Act and another based on what Trump’s lawyers claim are the broad powers granted to him by the PRA. .

Cannon, a Trump nominee who has been on the court since late 2020, expressed skepticism toward both claims while suggesting they may play a significant role in instructing the jury at the end of the trial. She quickly ruled against Trump’s claims about flaws in the Espionage Act and has yet to rule on the merits of the PRA request.

His two page order embraces at least the possibility that Trump’s PRA claims are valid, a stance that veteran national security lawyers disputed.

“The PRA is simply not relevant here in any way; provides no defense. Even allowing it to be argued at trial would create confusion for the jury,” said Barbara McQuade, a law professor at the University of Michigan and former U.S. attorney.

Typically, a judge will address the issue of jury instructions much later in the process. McQuade called Cannon’s decision to address those issues ahead of a series of other pretrial motions “premature and baffling.”

Cannon’s order suggests that she believes the PRA is central to the case and that parts of the law are open to interpretation.

Jason R. Baron, former litigation director for the National Archives and Records Administration, said that’s simply not true. He said Cannon appears to continually confuse the PRA with the Espionage Act, making the unauthorized sharing or handling of national defense information a crime. Baron said the PRA has no bearing on whether someone can be prosecuted under the Espionage Act.

“There is no ambiguity that the classified documents at issue in this case are presidential records,” Baron said. “He was not charged because he took newspaper clippings. He was charged because he took documents that were marked as classified.”

Baron said the judge, who has never before overseen a major national security trial, appears to be taking a fantastical view of the law.

“Like the queen in ‘Alice in Wonderland,’ Judge Cannon seems to ask the jury to believe at least two impossible things before breakfast,” Baron said. “First, a president has unlimited discretion to decide that documents marked ‘top secret’ are his own personal records, simply because he chose to keep them for himself. And second, that a president can avoid criminal prosecution under the Espionage Act because he decided that the classified records were actually his under the PRA. In both cases, the judge profoundly misinterprets the law.”

When Trump was indicted last year on dozens of counts of mishandling classified documents and obstructing government efforts to recover them, Cannon set a trial date for May 20. That date is no longer possible, given the still unresolved issues related to the presentation of classified evidence to the court. .

Prosecutors have asked that the trial begin in early July; Trump’s lawyers have argued that it should not begin until after the November election or, at the earliest, August.

Cannon’s recent instructions appear to entertain the idea that Trump’s legal interpretation of the PRA could be presented to the jury.

The Cannon appeals court already determined, in a separate matter also part of the Trump documents case, that the former president cannot declare documents classified as his personal property.

Trump “does not have a possessory interest in the documents in question, so he suffers no recognizable harm if the United States reviews documents that it neither possesses nor has a personal interest in,” he said. appeals court ruled in September 2022after Trump asked the court to appoint a special judge, or neutral arbitrator, to review materials the FBI had seized from Mar-a-Lago.

Cannon granted Trump’s special request, prompting an appeal from the Justice Department. An appeals court panel then resoundingly reversed his decision.

Gertner, the former federal judge, said Cannon’s latest order means it is time for special prosecutor Jack Smith to try to remove Cannon from the high-profile case, an extremely rare step for any prosecutor. “I think the best course is for Smith to move to impeach her now, listing all of her rulings that make little sense, the delays, rulings so far from the mainstream that they clearly suggest bias,” Gertner said.

Other attorneys said the legal standard for recusal is so high — not only under court rules but also in Justice Department practice — that any discussion of trying to remove Cannon from the case is implausible. Recusals typically occur when a judge has a close personal relationship with someone involved in a case or owns a significant amount of stock in a company involved.

“It is not enough to say that this judge has ruled against my case several times, therefore he must be biased. That’s not going to cut it,” said McQuade, the former federal prosecutor. “I would be surprised if an effort to remove her were successful, and that is a bad look for the government.”

Veteran trial lawyers say it’s not unusual for a judge to make it difficult for a party to try their case, and jurists are often, though not always, tougher on defense attorneys than prosecutors.

But in the case of the Trump documents, lawyers said, Smith may simply have to weather whatever legal storm Cannon creates, and be patient and confident that the evidence his team has amassed will ultimately convince the jury. That’s what happened when a previous special counsel, Robert S. Mueller III, went on trial against former Trump campaign chairman Paul Manafort.

In that trial, U.S. District Judge TS Ellis III He frequently made critical comments about the special counsel team and their handling of the case, questioning their judgment and limiting the evidence they could show the jury. Prosecutors pressed ahead and Manafort was eventually convicted.

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