Special counsel blasts judge's jury instruction request in Trump documents case

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Special Counsel Jack Smith arrives to deliver comments on the recently unsealed four-count indictment against former President Donald Trump on August 1, 2023 in Washington, DC.


In strong condemnation from lawyers of how Judge Eileen Cannon handled it Classified documents case Against the former president Donald TrumpSpecial counsel Jack Smith said in court filings Tuesday evening that the judge ordered the briefing based on a “fundamentally flawed” understanding of the case that had “no basis in law or fact.”

Smith's team was critical of Cannon Request for jury instructions Trump accepted that he has broad authority to take classified government documents and said he would seek an appeals court review if he accepted the former president's arguments about record retention powers.

In an unusual order last month, Cannon asked lawyers in the classified documents case to submit briefs on potential jury instructions defining the terms of the Espionage Act, under which Trump is accused of mishandling 32 classified records. Specifically, Cannon asked the special counsel and defense attorneys to write two versions of the proposed jury instructions.

The first scenario would instruct the jury to assess whether each of the records Trump is accused of retaining falls into the “personal” or “presidential” category, which is set forth by the Presidential Records Act, a post-Watergate statute that governs whether a white person is white. Government-owned housing records must be dealt with at the end of the presidency.

The second version Cannon heard assumes that, as president, Trump has full authority to take the records he wants from the White House, making it nearly impossible for prosecutors to get a conviction. If he institutes this type of instruction, Smith's panel said, “the government should be afforded an opportunity to obtain prompt appellate review.”

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“Both scenarios rest on an unstated and fundamentally flawed legal premise — namely, that the Presidential Records Act, and specifically the distinction between 'personal' and 'presidential' records, determines whether a former president is 'authorized' under the Espionage Act. To keep highly classified documents and store them in an unsecured location and to deposit,” wrote the Special Advisory Committee.

If allowed to present to a jury, prosecutors said, “that precedent would distort the trial.”

Cannon's request came days after hearing arguments on whether the Presidential Records Act gave the former president broad authority to designate as private any records from his time in the White House. Trump's lawyers said he had that authority and asked the judge to toss out the criminal charges.

In their own proposed jury instructions filed Tuesday evening, Trump's defense attorneys told the Cannon trial jurors that, on a prima facie case, Trump was “authorized” by the PRA to keep a class of documents defined as “personal records.” and after his tenure.”

In the second scenario, defense attorneys argued, “there can be no appropriate jury instructions regarding the factual issues … because that scenario prematurely closes the case against President Trump.”

Trump's motion also challenges Smith's ability to prove that the former president “knowingly” possessed the documents, meaning he knew it was against the law. “Medical science has yet to develop a device that can record what was in someone's mind in the distant past,” Trump's lawyers wrote.

Prosecutors have repeatedly said the PRA does not apply to the charges against Trump because the alleged conduct occurred after his presidency ended. Trump said his personal records were “pure fiction,” they wrote Tuesday, two years after he left office after the National Archives retrieved boxes of classified information from Mar-a-Lago.

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Their new filing sheds light on some of the evidence investigators gathered about Trump's record-keeping habits while he was president. According to the prosecutors' account, there is no evidence that Trump designated the relevant classified records private when he left the White House, and that he was under the impression that he had such authority months later, prosecutors said. Conservative legal system.

Cannon was skeptical that the charges should be dismissed outright at trial, but said Trump's lawyers might be appropriate to present “strong” arguments to a grand jury.

However, Cannon has not issued an official ruling on the motion to dismiss the case, and his request for hypothetical jury instructions shows the judge is still considering how the PRA applies to the case.

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