U.S. District Court Judge Aileen Cannon, who is overseeing Donald Trump’s classified documents case in Florida, issued an unusual order regarding jury instructions that stunned legal observers.
On Monday, Judge Cannon instructed attorneys on both sides to submit proposed jury instructions by Tuesday, April 2, on two issues related to two defense motions seeking to dismiss the indictment against the former president outright.
The judge heard the arguments for dismissal of the case at the hearing held in Fort Pierce, Florida last week.
During that hearing, Judge Cannon said neither Mr. Trump’s criticism of the Espionage Act nor Adoption of the Presidential Records Act (PRA) They were strong enough arguments to deny the charges against him.
Indeed, he quickly rejected the idea that the 32 charges against the former president were unacceptable. It is unconstitutionally “ambiguous” within the scope of Age of Espionage – For these reasons, we reject the first motion.
But he has yet to decide on a motion to dismiss based on the claim that Mr. Trump’s actions fall within the scope of the PRA.
During expressing doubts regarding both claims, He also suggested that some issues might be valid enough to be considered by the jury at trial.
Now, Monday’s order on those instructions appears to indicate that he not only contemplated a hearing in advance, but also anticipated its outcome on this matter.
Judge Cannon wants both the defense and the prosecution to submit proposed jury instructions and verdict forms regarding the “essential elements” of the Espionage Act.
The two-page order also said it expressed some sympathy with some of Team Trump’s claims that the PRA allows commanders in chief to declare highly classified documents as personal property, although national security law experts have hotly disputed that.
In the ruling, Judge Cannon asks prosecutors and defense attorneys to consider two hypothetical situations.
In the first, the jury would be allowed to review classified documents possessed by the former president and make a factual determination “whether it is personal or presidential using the definitions set forth in the Presidential Records Act.”
Oddly, he then adds in a footnote that although the immunity issue is a matter for judges, not juries, to decide, “separation of powers or immunity concerns will be included in this discussion if relevant.”
His second describes the scenario in which a president “has sole authority during his presidency to classify records as personal or presidential under the PRA.” Neither the court nor the jury is permitted to make or review such a classification decision.”
This latter possibility seems to be one in which Mr. Trump cannot be convicted on almost any basis of fact that he improperly possessed classified documents. This has completely confused legal commentators, given that this is exactly what Mr. Trump is accused of.
In my decades of practicing law, this is the strangest order I have ever seen issued by a federal judge. What makes this even more surprising is that the second and third strangest decisions I have ever seen in federal court were also given by Judge Cannon in this case. https://t.co/iS609sxIQb
— George Conway (@gtconway3d) March 18, 2024
Noting how “woefully vague” Judge Cannon’s language was, legal commentator and MSNBC host Katie Phang mused: “The PRA is clear. Just like the Espionage Act. I’m not sure why Cannon bothers with these concepts.”
National security attorney Bradley Moss also shared on X on Monday evening: “This second scenario is legally insane. “If that is the case, then grant Trump’s motion to dismiss on PRA grounds so the Justice Department can move the matter to the 11th circuit for a quick turnaround.”
George Conway, Trump’s longtime foe, was even harsher: “In my decades of practicing law, this is the strangest order I have ever seen issued by a federal judge. “What makes this even more surprising is that the second and third strangest decisions I have ever seen in federal court were also given by Judge Cannon in this case.”
He later wrote: “Okay, I’ve seen enough. Aileen Cannon should not be sitting on this case, nor should she be sitting on the federal bench. This is completely crazy.”
There was great consternation from the beginning about Judge Cannon’s role in the case. given that he was appointed by the former president.
Norm Eisen, a senior fellow at Brookings Governance who oversaw PRA issues at the White House for two years, said he had a lot in mind about the two options Judge Cannon presented.
Citing a column he wrote for CNN in June 2023, Mr. Eisen says the former president’s claim that the PRA justifies his actions is invalid because it has nothing to do with where he was given power. documents in the first place.
While Mr. Eisen argues that Mr. Trump’s legal team can unilaterally decide under the PRA what the former president can keep by simply saying it is personal, he notes that the law in no way expands the definition to include sensitive classified documents; purely private ones that are not related to the president’s duties.
At Thursday’s hearing, prosecutor Jay Bratt of Special Counsel Jack Smith’s team argued that although the former president personally acknowledged the recordings, he did not do so.
“But nowhere does the law expand the definition to include our nation’s most sensitive secrets. In contrast, personal documents are described as “purely private” documents that “do not relate to the duties of the President or have no bearing on the performance of those duties.” 5/x
— Norm Eisen (norm.eisen on Threads) (@NormEisen) March 18, 2024
He pointed to a transcript of a recorded conversation in which Mr. Trump discussed classified documents at his club in Bedminster, New Jersey.
“Not only was it premature, it didn’t happen at all,” Mr. Bratt said. “He’s not there saying, ‘I can show you this because it’s personal.’ … In fact, he says the exact opposite.”
As for what this means for the case, Mr. Eisen wrote of
“Clumsy and amateurish; He seems to know he is unbalanced and is seeking the parties’ help with threshold issues that would normally be resolved by the judge.
“If he persists down that path, special counsel Jack Smith can and will go to the 11th Circuit. And while he’s there, this and several other (threatening) gaffes give him the ammunition to turn this around and eliminate it.”
This is the kind of legal nonsense that might lead Jack Smith to ask Judge Cannon for mandamus (i.e., have the 11th Circuit appeals court hear this and strike him down for the third time), which could also be the proverbial three strikes and you’re out. https://t.co/dMjhf9bm6q
— Andrew Weissmann (weissmann11 on Threads)🌻 (@AWeissmann_) March 18, 2024
Mr. Trump faces a 40-count indictment alleging violations of the Espionage Act, obstruction and unlawful removal of federal records.
Mr. Trump is accused of illegally possessing classified documents at his Florida mansion after leaving the White House in January 2021.
He is also accused of obstructing the U.S. government’s efforts to recover classified documents after he allegedly tried to hide boxes of classified documents after a grand jury subpoena ordered their return.
Trump aide Walt Nauta and Mar-a-Lago property manager Carlos de Oliveira were also charged in the case.
All three men pleaded not guilty and moved to deny the charges against them.
Requests from Mr. Trump’s legal team to dismiss the case are a growing number of attempts to evade the 91 charges against him in four separate criminal cases in four jurisdictions.