Jack Smith’s devastating response to Judge Cannon’s jury order

Remember when U.S. District Judge Aileen Cannon floated a fringe legal theory that could help throw Donald Trump’s classified documents case in favor of the former president?

Well, special counsel Jack Smith just filed a devastating response, telling Cannon that he might have to challenge the Trump appointee on appeal if she doesn’t get it together.

As a refresher, Cannon asked the parties to file proposed jury instructions, regarding the federal charges alleging that Trump illegally retained national defense information. In doing so, she told them to consider two “scenarios,” both of which lend credence to the notion that the Presidential Records Act applies in this case. The problem is that the PRA is irrelevant to these criminal charges. So injecting the issue into the trial could lead the jury to think that Trump could do whatever he wanted with classified documents, which would obviously go against the criminal law that says otherwise.

That is, Cannon’s engagement on the subject signals that she’s contemplating a fringe legal theory that could tank Smith’s case in Trump’s favor. If the jury is instructed erroneously, then they’ll likely reach an erroneous result.

Smith was forceful in pointing this out in his response Tuesday night, writing that “both scenarios rest on an unstated and fundamentally flawed legal premise.”

Smith was forceful in pointing this out in his response Tuesday night, writing that “both scenarios rest on an unstated and fundamentally flawed legal premise.”

“The PRA’s distinction between personal and presidential records has no bearing on whether a former President’s possession of documents containing national defense information is authorized under the Espionage Act,” the special counsel added, referring to the criminal law under which Trump is charged with unlawful retention. The former president has pleaded not guilty.

But if Cannon somehow thinks otherwise, then Smith wants her to say so now. He urged the judge to “promptly decide” whether she actually thinks that outlandish legal view is correct. If she does, then Smith wants the chance to appeal her before trial. If she waits until trial to implement this wacky view, then it may be too late.

Smith wrote:

If the Court were to defer a decision on that fundamental legal question it would inject substantial delay into the trial and, worse, prevent the Government from seeking review before jeopardy attaches.

Delay, of course, is the name of Trump’s game. But even worse than delay would be holding a trial in which the jury is wrongly instructed on the law. Such a trial wouldn’t be much of a trial at all.

Now we’ll see how Cannon responds. Does she want to be appealed to the 11th U.S. Circuit Court of Appeals yet again? Recall that the appeals court already smacked her down — twice — over her handling of litigation before Trump was charged. But for Smith to lodge such a challenge, he needs something concrete to challenge. So one of the worst things she could do for the prosecution would be to avoid making a ruling and instead push the issue into an uncertain future.

Now we’ll see how Cannon responds. Does she want to be appealed to the 11th U.S. Circuit Court of Appeals yet again?

Even if Cannon sees the light — or is made to, by the appeals court — this episode illustrates that a trial judge has vast power over how a case proceeds, in matters large and small. So even if this particularly large matter is settled normally, that doesn’t mean the case is saved. That, in turn, raises the question of Cannon’s potential removal from the case, which I’ve explained is a more difficult feat to accomplish than it might seem. But taking her up on appeal could present that opportunity.

Of course, the question of how a trial proceeds is an academic one until Cannon sets a firm trial date — assuming Trump doesn’t win the presidential election in November, which would give him the power to eliminate the case entirely.

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