The federal judge overseeing Donald Trump’s prosecution on charges of retaining classified documents denied his effort to have the case dismissed on the contention that the Presidential Records Act allowed him to transform them as personal property and possess them at his Mar-a-Lago club.
The ruling by US district judge Aileen Cannon was significant as it struck one of Trump’s main defenses and suggested the case is headed to trial.
Cannon’s three-page order rejecting Trump’s motion to dismiss rested on the fact that Trump’s argument about the Presidential Records Act did not directly address the applicability of the Espionage Act, which he has been charged with violating, meaning it did not give her a basis to toss the case.
But the order left open the possibility that Trump could raise his Presidential Records Act theory as a defense at trial, and the possibility that Cannon could instruct the jury to credit Trump’s theory in such a beneficial manner that it could potentially ensure Trump’s acquittal.
The way the jury might be directed has become a major source of anxiety for prosecutors in the office of special counsel Jack Smith, after the judge last month ordered both sides to draft jury instructions envisioning two possible scenarios that gave extraordinary credit to Trump’s defenses.
Cannon had asked Trump and prosecutors to each draft jury instructions supposing it was true that Trump had the power under the Presidential Records Act to turn any White House document into personal records – which would implicitly mean he was authorized to retain them.
The authorization issue is key to the case because Trump was indicted for unlawfully retaining 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 preclude his prosecution.
Even more crucial is if Cannon actually uses such instructions at trial, because if that happens after the jury is sworn in, double jeopardy protections for Trump would kick in. If Trump is then acquitted, prosecutors would not be allowed to retry the case.
The first scenario envisioned that it was up to the jury to decide whether prosecutors could show beyond a reasonable doubt that Trump had not designated each classified document he took to Mar-a-Lago as personal.
The second scenario envisioned that Trump had the “sole authority” to turn a document he came across as president into a personal record that he could keep, and the very fact that he took them with him to Mar-a-Lago meant it was a personal record.
Prosecutors responded to Cannon with a sharply-worded 24-page filing on Tuesday that made clear they thought both scenarios were wrong on the law, but indicated they could find a way to work with the first scenario, because proving the classified documents were not personal was feasible.
But prosecutors wrote the second scenario was fatal to their case because it allowed Trump to simply claim all the classified documents seized at Mar-a-Lago were his personal property by virtue of taking them with him – and prosecutors would have no way to dispute that claim.
The Tuesday filing marked a moment of frustration for prosecutors, and they demanded that Cannon promptly articulate whether she intended to endorse a “fundamentally flawed legal premise” so they could appeal or have a higher court directly instruct how she should proceed with a writ of mandamus.
That demand earned prosecutors a stinging rebuke from Cannon, who called their request “unprecedented” and “unjust”.
Cannon wrote the she was declining to make known her position on how she would instruct the jury and told prosecutors her solicitation of draft jury instructions was an attempt to better understand both sides’ positions in a case where the issues at hand had never previously been litigated.
