The federal judge overseeing the prosecution of Donald Trump for possessing classified documents appears to be welcoming his most brazen defenses that could ultimately result in the former president’s acquittal.
The case revolves around an order issued Monday by U.S. District Judge Aileen Cannon asking Trump and prosecutors from Special Prosecutor Jack Smith’s office to draft jury instructions for two scenarios that gave extraordinary credence to theories of defense of Trump.
The two jury instruction scenarios, as designed by Cannon, were so beneficial to Trump and so potentially incorrect under the Espionage Act that they would raise serious doubts about the appropriateness of prosecutors to bring the charge. case before a court.
In his two-page orderCannon asked both sides to draft jury instructions assuming it was true that Trump had the authority under the Presidential Records Act to turn any White House document — classified or not — into files personal: files that he was authorized to keep.
The issue of authorization is key in this case because Trump was indicted for illegally possessing national security documents under the Espionage Act. If Trump could demonstrate that he was somehow authorized to keep the documents at Mar-a-Lago, that would prevent any prosecution.
The first scenario envisaged that it was up to the jury to decide whether prosecutors could demonstrate beyond a reasonable doubt whether Trump designated every classified document he brought to Mar-a-Lago as a personal document.
The second scenario envisioned that Trump had the “sole authority” to turn a document he discovered as president into a personal file he could keep, and the very fact that he took them with him to Mar-a -Lago meant that it was a personal file.
Prosecutors could find a way to work with the first scenario, largely because it would not be difficult to demonstrate that the classified documents seized at Mar-a-Lago were not personnel files.
Classified documents have long been considered documents belonging to the U.S. government, meaning it may not necessarily be a personnel record, and personnel documents are defined as “purely private” documents that “n ‘have no connection with or have any effect on the execution’ of presidential functions.
But the second scenario, which would not allow prosecutors to challenge the personal nature of a seized document, could be fatal to the case, because Trump would surely argue that all the classified documents at Mar-a-Lago were personal because They had been transported to Mar.-a-Lago at the end of his term.
If this jury instruction went to trial, legal experts suggested, Trump would have to file what is known as a motion for acquittal ordered under Rule 29 and Cannon could hold as a matter of law that a reasonable jury would never convict Trump for violating the Espionage Act. .
And if the jury’s instructions had been followed and Trump had requested acquittal at trial, because the trial would have already begun, double jeopardy would have been “attached” – preventing prosecutors from retrying the case later, per example with a different judge or different instructions to the jury. .
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Ironically, Cannon’s curious order requiring both sides to draft jury instructions appears to have arisen because she felt inclined to deny Trump’s motions to dismiss the indictment under the Records Act presidential elections and wanted the case to be judged.
Trump had asked Cannon to dismiss the indictment on several fronts, including the claim that Trump had turned the classified documents in question into personal records and could not be questioned, relying on a tense reading of a case involving the conservative group Judicial Watch.
The Judicial Watch case involved what is known as the “Clinton Socks Affair.” When Bill Clinton was president, he made 79 recordings for his memoir, which included portions of his phone calls as president.
Judicial Watch requested access to the recordings, but the National Archives said it did not have them and considered them personal, not presidential, documents. Judicial Watch filed a lawsuit, attempting to force the National Archives to designate them as presidential, but the suit was dismissed.
But Cannon appeared to doubt Trump’s position and at one point told Trump’s lead lawyer, Todd Blanche, that for her to dismiss the indictment based on the Presidential Records Act , he would have to decide that the Espionage Act was completely eliminated.
It was precisely around this discussion that Cannon asked Trump’s lawyers what instructions the jury would be given to decide what “unauthorized possession” entailed, taking into account the Presidential Records Act.
While prosecutors maintained that the Presidential Records Act had nothing to do with classified documents governed by the Espionage Act, Blanche muddied things for Cannon by insisting that their position was that instructions of the jury were to include language from the Presidential Records Act.