In a late filing on Tuesday, special counsel Jack Smith criticized the judge presiding over former President Donald Trump’s classified documents case, claiming that her proposed jury instructions contain a “flawed legal premise” that could lead to an appeal. This development adds a new twist to the ongoing legal battle between Trump and the government, as both sides prepare for a potential trial in July.
U.S. District Judge Aileen Cannon, a Trump appointee, had ordered both the defense and prosecution to submit potential jury instructions based on competing interpretations of two laws relevant to the case. Her order suggested that Trump may have had a legal right under the Presidential Records Act (PRA) to declare certain records as personal after leaving office, a premise that Smith argues is wrong.
I will separate out Smith’s threats to Cannon (unusual and toothless for the most part) later but this is basically the jury instructions DOJ wants to use.
This also might be a problem for DOJ bc it appears Trump still had Q security clearance at Dept. of Energy–one that DOE… pic.twitter.com/jz4YJ1eNk9
— Julie Kelly 🇺🇸 (@julie_kelly2) April 3, 2024
The two sets of proposed jury instructions highlighted the crux of the dispute between the two sides. Trump’s lawyers argued that he had control over designating documents as personal, while Smith emphasized that the PRA is not relevant to the charges against Trump. Smith also suggested that the instructions proposed by Cannon are based on an “unstated and fundamentally flawed legal premise” and could “distort the trial.”
The ongoing arguments between the two sides have raised questions about when the trial will actually begin. Cannon had previously told prosecutors that a late July start date may be unrealistic, but she has not yet issued a schedule for the trial. Some experts believe that the constant back-and-forth between the judge and the two sides is delaying the trial and making it difficult to predict a potential start date.
This is why Smith is so angry–he knows if Cannon proceeds with the proposed scenario presented in her jury instructions order, he is, as one defense attorney told me at the time, f*cked.
He essentially demands that she rule now on jury instructions (she doesn’t have to) or… pic.twitter.com/765SfIDygK
— Julie Kelly 🇺🇸 (@julie_kelly2) April 3, 2024
Trump is facing 32 counts of violating the Espionage Act, with each count corresponding to a classified document that he is alleged to have retained illegally after leaving office. He also faces eight counts related to alleged obstruction of officials’ efforts to retrieve the materials and has pleaded not guilty to all the charges. If convicted, he could face severe penalties, including a potential prison sentence.
Smith’s criticism of the judge’s order also raises the possibility of an appeal, something that would further delay the trial. Some have questioned Smith’s tone and approach in his latest filing, with some saying it seems like a “prosecutorial temper tantrum.” A prominent defense attorney who has represented Jan. 6 Capitol riot defendants, Bill Shipley, has also questioned the prosecutor’s role in determining the “facts” before the trial even begins.
One of the key points of contention between the two sides is Trump’s claim that he had designated certain records as personal under the PRA. However, according to Smith, this claim is “concocted” and did not exist at the time Trump transferred boxes of documents to Mar-a-Lago. During interviews with “numerous high-ranking officials from the White House,” not a single one claimed to have heard Trump declare any documents as personal.
A reminder that this is Smith’s indictment.
Charged a former president for the first time on violating the Espionage Act.
Now Smith’s wants the jury to interpret the language of the law based on Obama’s Executive Order not the Presidential Records Act. pic.twitter.com/VRIZ6ZwErY
— Julie Kelly 🇺🇸 (@julie_kelly2) April 3, 2024
Despite arguments from both sides, there is still no indication of when the trial will begin. For now, disputes over jury instructions and competing interpretations of the law continue to delay the proceedings. Many are eagerly waiting to see how Cannon will rule on the various motions and if the trial will finally get underway in the near future.
However, the delay could also work in Trump’s favor, as it gives him more time to prepare his defense. Some experts believe that the longer the trial is delayed, the better it is for Trump’s legal team, as it gives them more time to scrutinize the government’s case and potentially poke holes in it. Only time will tell when this highly-anticipated trial will finally begin, but until then, the legal back-and-forth between the two sides is likely to continue.
