by US District Court Judge Aileen Cannon, who is overseeing Donald Trump’s classified documents case in Florida, issued an unusual order regarding jury instructions that left legal observers baffled.
On Monday, Judge Cannon instructed lawyers for both sides to file their jury instructions by Tuesday April 2 on two matters related to two defense motions asking for the indictment against the former president to be dismissed in its entirety .
The judge heard the arguments to dismiss the case at a hearing in Fort Pierce, Florida, last week.
During that hearing, Judge Cannon appeared skeptical that Mr. Trump’s criticism of the Espionage Act was included on the Presidential Records Act (PRA) arguments strong enough to dismiss the charges against him.
In fact, she quickly rejected the notion that there were 32 charges against the former president about the unconstitutionally “vague” Age of Espionage – denying the first motion on those grounds.
However, she is yet to rule on the motion to dismiss based on the argument that Mr. Trump’s actions are covered by the PRA.
even though express doubts about both arguments, she also suggested that certain elements may be valid enough for a jury to consider at trial.
Now, Monday’s order regarding those instructions seems to indicate that she is not only considering going to trial but also awaiting her conclusion on this matter.
Judge Cannon is asking both the defense and prosecution to submit proposed jury instructions and verdict forms regarding the “essential elements” of the Espionage Act.
In the two-page order, she also suggested some sympathy for some of the Trump team’s demands regarding the PRA allowing commanders in chiefs to declare highly classified documents as personal property — despite national security law experts strongly disputing this.
In the order, Judge Cannon asks the prosecutors and defense attorneys to consider two hypothetical situations.
First, the jury would be allowed to review the former president’s possession of classified documents and make a factual determination as to whether it is “personal or presidential using the definitions set forth in the Records Act the President”.
Curiously, she then adds in a footnote that any “separation of powers or immunity concerns will be included in this discussion if relevant” – despite the fact that the issue of immunity is for judges, not juries.
The second scenario describes a situation where “one president has authority under the PRA to categorize records as personal or presidential records during his or her presidency. Neither a court nor a jury may make or review such a categorization decision”.
That second incident appears to have been a case where Mr. Trump could not be convicted on almost any set of facts related to his improper possession of classified documents. This has left legal commentators very upset, since Mr Trump is directly responsible for it.
In my many years as a lawyer, this is the strangest order I have ever seen issued by a federal judge. Amazingly, Judge Cannon issued the second and third strangest orders I’ve ever seen in federal court in this case. https://t.co/iS609sxIQb
— George Conway (@gtconway3d) March 18, 2024
Noting how “obviously vague” Judge Cannon’s language is, legal commentator and MSNBC host Katie Phang said: “The PRA is clear. As is the Espionage Act. I’m not sure why Cannon struggles with these concepts.”
National security lawyer Bradley Moss also posted on X on Monday afternoon: “This second case is legally insane. If that were the case, Trump’s motion to dismiss on the PRA grounds is all that is needed so that DOJ will take it to the 11th circuit for a quick reversal.”
Longtime Trump foe George Conway was even more alarmed: “In my decades as a lawyer, this is the strangest order I’ve ever seen issued by a federal judge. It’s amazing that Judge Cannon issued the strangest second and third orders I’ve ever seen in federal court in this case.”
He later wrote: “Okay, I’ve seen a lot. Not only should Aileen Cannon not be sitting on this case, but she should not be sitting on the federal bench at all. This is not pleasant.”
There was great concern about Judge Cannon’s role in the case from the start since she was appointed by the former president.
Norm Eisen, a senior fellow at Brookings Governance who oversaw PRA issues in the White House for two years, noted that several things jumped out at Judge Cannon’s two choices.
Referring to an op-ed he wrote for CNN in June 2023, Mr. Eisen says that the former president’s claim that the PRA justifies his actions is not satisfied because it has nothing to do with where he was authorized the . documents first.
Mr. Eisen says that while Mr. Trump’s legal team argues that, under the PRA, the former president can unilaterally decide what he can hold by saying it’s personal, the statute does not extend that way whatever the definition to include sensitive classified documents – just. only private ones not related to the duties of the president.
At Thursday’s hearing, prosecutor Jay Bratt, part of Special Counsel Jack Smith’s team, argued that even if the former president could consider the records personal, they were not.
“But nowhere does the statute stretch the definition … to include our nation’s most sensitive secrets. Conversely, personal documents are defined as “entirely private” documents that “do not relate to or affect the performance of … the duties of the President.” 5/x
— Norm Eisen (norm.eisen on Threads) (@NormEisen) March 18, 2024
He cited a transcript of a recorded conversation in which Mr. Trump discussed classified documents at his club in Bedminster, New Jersey.
“Not only is it premature, it’s never happened,” Mr. Bratt said. “He doesn’t then say, ‘I can show you this because it’s personal.’ … In fact, he is saying the opposite.”
As for what this means for the case, Mr. Eisen wrote on X: “Cannon seems inclined to push the case to trial but is essentially asking if she can stack the deck so she wins at Trump.
“It’s clumsy & amateurish – she seems to know she’s wobbly & she’s asking the parties to help figure things out usually at the judge’s door.
“If she continues this course, special counsel Jack Smith can and will go to the 11th Circuit. And while he’s there, this mistake and many others in recent (threatened) gives him ammo to turn around and take her down.”
This is the kind of legal insanity that could lead Jack Smith to try to get Judge Cannon-ie’s 11th Circuit court of appeals to hear this and reverse it a third time – which could be the proverbial three strikes too and you’re out. https://t.co/dMjhf9bm6q
— Andrew Weissmann (weissmann11 on Threads) 🌻 (@AWeissmann_) March 18, 2024
Mr. Trump faces a 40-count indictment alleging violations of the Espionage Act, obstruction, and illegal removal of federal records.
Mr Trump has been accused of illegally possessing classified documents at his Florida estate after he left the White House in January 2021.
He is also accused of obstructing the US government’s efforts to reclaim those documents after he allegedly tried to hide boxes of classified documents after a grand jury subpoena ordered their return.
Mr. Trump’s aide Walt Nauta and Mar-a-Lago property manager Carlos de Oliveira were also indicted in the case.
All three men pleaded not guilty to the charges and all moved to have the charges against them dismissed.
The motions by Mr. Trump’s legal team to dismiss the case add to a growing list of attempts to evade the 91 criminal charges against him in four separate criminal cases in four jurisdictions.
