Jack Smith airs frustration with Cannon’s embrace of ‘fundamentally flawed’ instructions

Special counsel Jack Smith aired frustration at U.S. District Judge Aileen Cannon, arguing she is giving credence to a “fundamentally flawed legal premise” from former President Trump that the classified documents recovered from his Florida home were his personal property.

The filing Tuesday night comes as Cannon has asked both sides to propose jury instructions that would take into account Trump’s view of the Presidential Records Act (PRA), which dictates how records created during a president’s term must be handled and later archived.

The law does allow for some records to be considered personal property of the president, but legal experts have rebuffed Trump’s argument that the more than 300 highly classified records recovered from his property could in any way be considered personal.

Smith’s team argued that accepting Trump’s theory “would distort the trial.”

“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, and the PRA should play no role in the jury instructions,” prosecutors wrote.

“Indeed, based on the current record, the PRA should not play any role at trial at all.”

“It would be pure fiction to suggest that highly classified documents created by members of the intelligence community and military and presented to the President of the United States during his term in office were ‘purely private,’” prosecutors added later.

Trump is largely being prosecuted under the Espionage Act, which prohibits the willful retention of national defense information. He is also charged with obstruction of justice for seeking to conceal the records from authorities after they demanded their return.

Special counsel Jack Smith speaks to the media about an indictment of former President Donald Trump, Tuesday, Aug. 1, 2023, at an office of the Department of Justice in Washington. (AP Photo/J. Scott Applewhite)

Legal observers were baffled by Cannon’s recent instructions, asking both sides to weigh two scenarios that largely embraced Trump’s view of the PRA despite having failed to consider an earlier motion from him seeking to toss the case on those grounds.

The indecision on that matter and numerous other motions have created a backlog of issues in the case, including Cannon’s consideration of a new trial date.

“It is purely a question of law that must be decided promptly. If the Court were to defer a decision on that fundamental legal question it would inject substantial delay into the trial,” prosecutors wrote of Cannon’s need to rule on the underlying PRA motion before leapfrogging to jury instructions based on the matter. 

It’s unusual for prosecutors to be so direct in countering a judge’s directions, but numerous lines in the filing suggested impatience with the slow pace of the proceedings.

At another point in the filing, Smith called it “vitally important” that Cannon “promptly decide” the matter, noting their ability to pursue a future appeal of erroneous jury instructions. 

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Smith’s team also spent ample time undercutting Trump’s claims that the records could be his personal property, noting he has yet to provide any evidence he sought to designate them as such, even as he’s mounted a legal defense based on that argument. 

“The Court should be aware at the outset that Trump’s entire effort to rely on the PRA is not based on any facts. It is a post hoc justification that was concocted more than a year after he left the White House, and his invocation in this Court of the PRA is not grounded in any decision he actually made during his presidency to designate as personal any of the records charged,” prosecutors wrote. 

“Importantly, Trump has never represented to this Court that he in fact designated the classified documents as personal. He made no such claim in his motion to dismiss, in his reply, or at the hearing on March 14, 2024, despite every opportunity and every incentive to do so. As discussed below, the reason is simple: he never did so. Instead, he has attempted to fashion out of whole cloth a legal presumption that would operate untethered to any facts.”