Left: Special Counsel Jack Smith. (AP Photo/J. Scott Applewhite, File)/Center: In this image from video provided by the U.S. Senate, Aileen M. Cannon speaks remotely during a Senate Judiciary Committee oversight nomination hearing to be U.S. District Court for the Southern District of Florida on July 29, 2020./Right: Donald Trump speaks with supporters at the Westside Conservative Breakfast, June 1, 2023, in Des Moines, Iowa. AP Photo/Charlie Neibergall, File)
The judge in the Mar-a-Lago case rejected Donald Trump’s request to dismiss his prosecution under the Presidential Records Act (PRA) on Thursday. However, she did so in a way that may still benefit the defense in the future, according to experienced prosecutors.
The judge’s actions in the Mar-a-Lago case are similar to her handling of Trump’s motion to dismiss based on the Espionage Act’s “unconstitutional vagueness” in March, when she rejected the motion, but without preventing it from being raised again laterfor further consideration in connection with jury-instruction briefing and other motions. In the recent decision, the judge denied Trump’s motion to dismiss under the PRA, but criticized Jack Smith for demanding speedy and unjust jury instructions before a trial with an unknown start date.
The dispute between the special counsel and the judge intensified when she instructed both the prosecution and the defense to submit “proposed jury instructions limited to the essential elements” of Trump’s Espionage Act charges and to present alternative text based on different scenarios.
Following this, Cannon’s legal colleagues strongly criticized the instruction as “bizarre,” “bonkers” and “fundamentally unhinged” for seemingly “giving credence” to defense arguments “that are on their face absurd.”
The “competing scenarios,” as Cannon described them in her earlier instruction:
(a) In a prosecution of a former president for allegedly retaining documents in violation of 18 U.S.C. § 793(e), a jury is permitted to examine a record retained by a former president in his/her personal possession at the end of his/her presidency and make a factual finding as to whether the government has proven beyond a reasonable doubt that it is personal or presidential using the definitions set forth in the Presidential Records Act (PRA).
(b) 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. Although there is no formal means in the PRA by which a president is to make that categorization, an outgoing president’s decision to exclude what he/she considers to be personal records from presidential records transmitted to the National Archives and Records Administration constitutes a president’s categorization of those records as personal under the PRA.
The disagreement over potential jury instructions escalated on Tuesday when Smith called the former president’s PRA arguments “fictional,” “invented,” and “legally erroneous.” He urged Cannon to quickly express her view on “whether the PRA has an impact on the element of unauthorized possession under Section 793(e)” before “jeopardy attaches”. at trialHe insisted that prosecutors “must have the opportunity to consider appellate review” if Cannon “wrongly” decides to “include the PRA in the jury instructions regarding what is authorized under Section 793.”
In essence, the special counsel wanted the judge to definitively decide whether to include a “clearly erroneous jury instruction” so he could appeal the issue without delay. He emphasized the importance of the issue as follows:
If, for example, the Court concludes—as posited in Scenario (a) in the Court’s order—that under the Espionage Act a former President is authorized to possess any document that the jury determines qualifies as a personal record as defined by the PRA, that would wrongly present to the jury a factual determination that should have no legal consequence under the elements of Section 793. Likewise, if the Court concludes—as posited in Scenario (b)—that a President has carte blanche to remove any document from the White House at the end of his presidency; that any document so removed must be treated as a personal record under the PRA as an unreviewable matter of law; and that, also as a matter of law, a former President is forever authorized to possess such a document regardless of how highly classified it may be and how it is stored, that would constitute a “clearly erroneous jury instruction that entails a high probability of failure of a prosecution,” Wexler, 31 F.3d at 129, and the Government must be provided with an opportunity to seek prompt appellate review.
Smith clarified that he might request an "appellate review" using a mandamus from the U.S. Court of Appeals for the 11th Circuit, which is an "extraordinary remedy." something that Cannon’s critics had been asking for weeks ago and are asking for again in order to compel the judge to act.
Judge Cannon just rejected Trump’s bogus Presidential Records Act defense, but only for now. She has (weirdly and pointedly) refused to actually decide the issue, despite Jack Smith’s warning that double jeopardy would then apply. I think Smith has no choice but to go to the 11th… pic.twitter.com/JcQzqOCJEl
— Neal Katyal (@neal_katyal) April 4, 2024
Former acting U.S. Solicitor General Neal Katyal expressed his opinion that Judge Cannon rejected Trump's argument under the Presidential Records Act for now, but he warned that if she does not make a decision, double jeopardy might apply and Smith might have to go to the 11th Circuit for a mandamus. He believes that the tough standard for mandamus is met in this case.
When she dismissed Trump’s motion on Thursday, Cannon rejected Smith’s demands, accused the special counsel of requesting something unprecedented and unjust, and defended her proposed jury instructions as genuine and not a final definition. She denied the motion to dismiss but did not exclude the use of the PRA as a defense at trial.
The judge wrote that she declines the special counsel’s demand for anticipatory finalization of jury instructions before trial, charge conference, and presentation of trial defenses and evidence as unprecedented and unjust. She clarified that her order for preliminary draft instructions should not be taken as a final definition or anything other than a genuine attempt to understand the parties’ positions and the questions for the jury in this complex case.
At the same time, Cannon reminded the Special Counsel’s Office that it is free to pursue appellate options permitted by law.
Former federal prosecutor Renato Mariotti noted that the ruling was somewhat of a judicial sleight-of-hand, making Smith’s appellate threats empty for the time being.
Mariotti explained that the importance lies in Cannon’s refusal to make a decision on Trump’s Presidential Records Act arguments before the Mar-a-Lago trial begins, making it so Smith has nothing to appeal. If Cannon instructs the jury incorrectly and Trump is found not guilty as a result, Smith *could not appeal* the not guilty verdict.
The underlying concern shared by Smith is that Cannon’s proposed jury instructions appeared to open up a possible path to acquittal based on a misstatement of the law. In Mariotti’s view, by not accommodating Smith’s demands, the Trump-appointed judge is moving closer to creating that scenario.
This is important — Judge Cannon refused to make a decision regarding Trump’s absurd Presidential Records Act arguments before the Mar-a-Lago trial begins.
By refusing to make a decision, Jack Smith has nothing to appeal.
If Cannon instructs the jury incorrectly and Trump is… https://t.co/rnFltSCdqq
— Renato Mariotti (@renato_mariotti) April 4, 2024
Nancy Gertner, a retired federal judge who criticized Cannon previously, also joined in calls for the special counsel to go to the 11th Circuit.
In comments to Politico, Gertner said Smith “could be without recourse after a trial begins” and must “stop playing games and move to disqualify” Cannon.
Is that possible at this point?
According to national security lawyer Bradley Moss, it is not.
“I think Smith needs to attempt to remove the PRA defense first through a motion in limine,” he said. said. “If Cannon rejects that option, *then* you request mandamus relief.”
Moss clarified that he would submit a motion in limine “and attach a specific date to it, if only to show the 11th Cir that you have tried other solutions before seeking such extraordinary relief.” He was responding to Katyal, who argued that Cannon has indicated she will make a decision on the issue only “after double jeopardy applies.”
“So I would suggest going to CA11 now, but I don't see any harm in filing the MIL and indicating that we plan to go to CA11 by a specific date (in the next few days) if she doesn’t exclude the PRA stuff,” Katyal commented. “The PRA defense is so weak that it is ridiculous that this is taking up anyone’s time. CA11 should review it and reverse it quickly.”
But hasn’t Jack Smith repeatedly accused Cannon of “clear error” before? Can’t that lead to a possible mandamus move? It is true that Smith has already threatened to appeal if Cannon separately refuses to reconsider a “clear error” that could about government witnesses through discovery. However, the judge has not yet made a decision on that issue either.
So, as questions swirl about what Jack Smith may do, what does Cannon’s order mean?
According to one former member of former special counsel Robert Mueller’s team, Trump didn't win a battle but didn't lose the war, thanks to Cannon’s ruling. In a thread on X, Brandon Van Grack expressed the view that Cannon left Trump’s defense with a “potential out.”
My interpretation of Judge Cannon’s order—in light of her request for jury instructions, brevity of her order, and measured language—is she rejected former President’s main claim that would’ve been dispositive but reserved judgment on if a record being “personal” is a defense 🧵 https://t.co/WlsjljiXxr
— Brandon Van Grack (@BVanGrack) April 4, 2024
Van Grack said that Cannon’s rejection of Trump’s motion dismissed the second scenario she mentioned in her jury instructions order but left open the first scenario by reserving “judgment on if a record being ‘personal’ is a defense.”
“DOJ noted the second scenario should lead to dismissal in this case and granting of the motion to dismiss. Both parties agreed on that point. So by denying the motion, she is rejecting scenario two,” he said. “However, scenario one is still in play. The question is: Is there evidence that the records were ‘personal.’ DOJ notes there is no evidence defendant ever declared them to be ‘personal’ and there is no reason to think they are in fact ‘personal.'”
Still, Van Grack said, Cannon “preserved the option of still presenting scenario one to the jury—in particular if at trial there is evidence that they are ‘personal’ or the defendant declared them to be ‘personal.'”
“Such an instruction would not be fatal to DOJ’s case—as it notes, there is no evidence that they are or were ever declared to be ‘personal,'” he concluded. “But it does leave defendant with a potential out.”