by The federal judge overseeing the prosecution of Donald Trump on charges of withholding classified documents appears to be throwing away the best defenses that could lead to the former president’s acquittal.
The issue is related to an order by US District Judge Aileen Cannon on Monday asking Trump and prosecutors in the office of special counsel Jack Smith to draft jury instructions for two cases that gave extraordinary credence to Trump’s defense theories.
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Both jury instruction cases, Cannon thought, were so beneficial to Trump and so wrong about the law of the Espionage Act that it would seriously question whether prosecutors made sense to take the case to trial.
In his two-page order, Cannon asked both parties to draft jury instructions assuming it was true that Trump had the power under the Presidential Records Act to turn any White House document — classified or not — into personal records: records he was authorized to make. keep
The issue of authorization is critical to the case because Trump has been indicted for illegally withholding national security materials under the Espionage Act. If Trump could show that he was somehow authorized to keep the documents at Mar-a-Lago, it would prevent his prosecution.
In the first case the jury was supposed to decide whether prosecutors could show beyond a reasonable doubt that Trump had designated every classified document he took to Mar-a-Lago as personal.
The second scenario imagined that Trump had the sole authority to turn a document he came across as president into a personal record that he could keep, and due to the fact that he brought it with him to Mar-a-Lago them, he meant it was a personal record. personal record.
Prosecutors could find a way to work with the first case, largely because it would not be difficult to show that the classified documents seized at Mar-a-Lago are not personal records.
Classified documents have long been considered US government matters, meaning they cannot be a personal record, and personal documents are defined as “purely private” papers that “do not relate to or affect the execution of” of presidential duties.
But the second scenario, which would not allow prosecutors to dispute whether a seized document was personal, could be fatal to the case because Trump would almost certainly argue that all the classified documents at Mar-a-Lago were personal by virtue of be brought to Mar-a-Lago. -a-Lago at the end of his term.
If that jury instruction were taken to trial, legal experts suggested, Trump should have filed the Rule 29 motion for acquittal and Cannon could have determined as a matter of law that a reasonable jury would never have convicted Trump of the Act Overcoming espionage. .
And if the jury instruction went ahead and Trump filed for acquittal, because the trial would have already started, there would be double jeopardy “tied up” — preventing prosecutors from trying the case again later for example with a different judge or with different jury instructions. .
If Trump could show that he was somehow authorized to keep the documents at Mar-a-Lago, it would prevent his prosecution.
Ironically, Cannon’s strange order asking both parties to draft jury instructions appears to have come because she felt inclined to reject Trump’s motion to dismiss the indictment under the Presidential Records Act and wanted for the case to proceed to trial.
Trump asked Cannon to dismiss the indictment on multiple counts, including one contention that Trump turned the classified documents in question into personal records and could not be second-guessed, relying on a duress reading of his case belonged to the conservative group Judicial Watch.
The Judicial Watch case involved the so-called “Clinton socks case”. When Bill Clinton was president, he made 79 memorabilia tapes, which included parts of his phone calls as president.
Judicial Watch sought access to the tapes, but the National Archives said they were not, and in any case considered them personal records rather than presidential. Judicial Watch sued, trying to force the National Archives to designate them as president, but the lawsuit was dismissed.
But Cannon seemed skeptical of Trump’s position, and at one point told Trump’s top lawyer Todd Blanche that he would require her to dismiss the indictment on the grounds of the Presidential Records Act to repeal the Espionage Act altogether.
It was around that discussion that Cannon asked Trump’s lawyers what the instructions would be for the jury to determine what constituted “unauthorized possession”, taking into account the Presidential Records Act.
Although prosecutors argued that the Presidential Records Act had nothing to do with classified documents governed by the Espionage Act, Blanche contradicted himself by arguing that the jury instructions were what was needed to interpret Act Include the President’s records.
