Judge Cannon's ticking time bomb jury instructions
She's got a lot of ways to blow up this case, and appears to be trying this one on for size.
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Last week we got an alarming look at a potential route for Judge Aileen Cannon to ruin the case against Donald Trump for stealing government documents and hiding them in his pool shed at Mar-a-Lago. Even worse, she might be able to do it in a way that forecloses the possibility of review by any higher court.
This puts Special Counsel Jack Smith in a terrible position. He can either stay the course and hope that public condemnation will force the judge to course correct, or he can seek emergency review at the Eleventh Circuit — an effort which is highly unlikely to succeed and will certainly knock the trial off the calendar for the foreseeable future.
The nightmare scenario
Since June 2023 when Trump’s indictment for retaining national defense information and conspiring to obstruct justice landed on Judge Cannon’s docket, former federal prosecutor Mitchell Epner has warned of a “nightmare scenario” in which the judge would wait until the jury was sworn in and then simply dismiss the case.
This decision would likely be unreviewable under the principle of double jeopardy, since you can’t be tried for the same crime twice. It derives from the Fifth Amendment, which says that “No person shall … be subject for the same offense to be twice put in jeopardy of life or limb.” But it’s broader than simply meaning that a person who is acquitted of a crime can’t be re-tried for it, since jeopardy “attaches” when the jury is empaneled. So, in Epner’s nightmare, the judge could simply wait for her clerk to swear in the jurors, and then issue a mixed ruling of law and fact that would dispose of the case and be effectively unreviewable on appeal. Trump could then walk free and never be tried for stealing those documents.
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This blatant act of partisan hackery would subject Judge Cannon to even more disdain from her legal peers than her efforts to help Trump in 2022. Court watcher David Lat reports that the Trump cases have caused major stress in the judge’s chambers, with one potential law clerk withdrawing after being told by the firm she was slated to join that it would not penalize her for protecting her resume from the potential black mark of affiliation with Cannon. Clearly the judge is rattled by the universal condemnation of her peers and would prefer to kick the can down the road until after the election, hoping that Trump will win and put an end to her ordeal.
But if that doesn’t work out, she seems to be edging her way toward a less obvious jeopardy scenario, albeit while making a token effort to pretend she’s engaged in real law.
Bad jury instructions
On March 18, Judge Cannon ordered the parties to draft proposed jury instructions relating to Trump’s right to possess the documents at issue under the Presidential Records Act (PRA). The statute was first enacted in 1974 (under a different title) to stop Richard Nixon from destroying evidence in the Watergate scandal. Prior to that, presidents treated their official records as personal property and retained them upon leaving office. But the PRA shifted ownership to the federal government, and the Supreme Court upheld the statute in Nixon v. Administrator of General Services.
Trump has shamelessly tried to retcon the PRA into a law which allows him to treat presidential records like personal documents. In 2021, he cited the PRA when he tried to block the National Archives from releasing evidence to the January 6 Select Committee. And in 2022, after the FBI raided Mar-a-Lago, his lawyers argued at the Eleventh Circuit that the very act of stealing the documents converted them to personal records.
Since President Trump had complete authority under the PRA to designate initially the records at issue as “personal” during his presidency, and the seized records “were not provided to the Archives at” the end of his presidency, the seized records are presumptively personal.
This declassification and decommissioning by theft argument is clearly erroneous — the PRA would be a nullity if Nixon could have just pocketed the evidence and called it “presumptively personal.” Nevertheless, Judge Cannon has requested jury instructions for two scenarios which treat this ridiculous theory as settled law.
In the first, she posits that “a jury is permitted to examine a record retained by a former president in his/her personal possession at the end of his/her presidency and make a factual finding as to whether the government has proven beyond a reasonable doubt that it is personal or presidential using the definitions set forth in the Presidential Records Act (PRA).”
As a threshold matter, many of these documents are classified, and should probably not be shown to the jurors under the Classified Information Procedures Act. But more to the point, Trump is not charged under the PRA — he’s charged with willfully retaining national defense information in violation of 18 USC § 793(e), also known as the Espionage Act. Whether these are personal or presidential records is irrelevant. Trump could have copied the nuclear codes into his diary and called it a personal record, but it would still violate the Espionage Act to store them in his pool shed!
The second scenario is premised on Trump’s “I stole it, so it’s personal” defense being the actual law of the land:
A president has sole authority under the PRA to categorize records as personal or presidential during his/her presidency. Neither a court nor a jury is permitted to make or review such a categorization decision. Although there is no formal means in the PRA by which a president is to make that categorization, an outgoing president’s decision to exclude what he/she considers to be personal records from presidential records transmitted to the National Archives and Records Administration constitutes a president’s categorization of those records as personal under the PRA.
Instructing jurors that they are obliged to take Trump at his word that stolen documents are personal records is functionally an instruction to acquit. And by the time Judge Cannon says this in open court, there will be no way to appeal or to retry the case. She will have turned the nightmare scenario into a reality.
The pushback
To their very minimal credit, even Trump’s lawyers acknowledged that the court’s proposed jury instructions are nonsensical, writing in their reply that “[t]here can be no appropriate jury instructions relating to factual issues in scenario (b) because that scenario forecloses prosecution” under the Espionage Act. But their proposed solution to this quandary is to dismiss the case entirely on the theory that the Espionage Act is either unconstitutionally vague or else inapplicable to someone who can steal documents at will.
The special counsel’s memo was significantly more muscular. In the first page, Smith blasted the “fundamentally flawed legal premise” baked into the judge’s proposed jury instructions, and warned that they would “distort the trial.”
“The PRA’s distinction between personal and presidential records has no bearing on whether a former President’s possession of documents containing national defense information is authorized under the Espionage Act, and the PRA should play no role in the jury instructions on the elements of Section 793,” he wrote.
“If the Court wrongly concludes that it does, and that it intends to include the PRA in the jury instructions regarding what is authorized under Section 793, it must inform the parties of that decision well in advance of trial,” he continued. “The Government must have the opportunity to consider appellate review well before jeopardy attaches.”
In plain English, Smith is demanding that Judge Cannon declare immediately whether she intends to use this flatly wrong jury instruction, allowing him time to seek emergency relief from the Circuit Court before jeopardy attaches. He also spends several pages laying out evidence that Trump and his lawyers never conceived of the records as personal until Tom Fitton, president of the right-wing trollsuit factory Judicial Watch, convinced him that a 2012 lawsuit his organization filed against the National Archives established the personalization-by-purloining precedent.
For instance, in February 2022, after it emerged that he had returned 15 boxes of documents, some of which contained classified materials, Trump bloviated that “[t]he National Archives did not ‘find’ anything, they were given, upon request, Presidential Records in an ordinary and routine process to ensure the preservation of my legacy and in accordance with the Presidential Records Act.”
In the summer of 2022 when Trump was subpoenaed for all documents in his possession bearing classified markings, he never moved to quash the subpoena on the theory that he had a right to keep them. Instead he had his lawyers Evan Corcoran and Christina Bobb concoct a false attestation saying that he’d handed them all over to the government and no further documents remained at Mar-a-Lago.
And, in an unsubtle reminder of what happened the last time Judge Cannon simply concocted her own theories of law to help Trump, Smith quotes the Eleventh Circuit’s slapdown of her prior ruling with respect to the Mar-a-Lago search warrant.
Trump “does not have a possessory interest in the documents at issue, so he does not suffer a cognizable harm if the United States reviews documents he neither owns nor has a personal interest in,” the appellate panel wrote, describing the very evidence Judge Cannon would now like to treat as presumptively personal.
The special counsel ended with a final exhortation to decide the matter quickly, “long before jeopardy attaches, to allow the Government the opportunity to seek appellate review.”
Cannon ball
Two days later, Judge Cannon responded in a two-page order, which began by denying Trump’s motion to dismiss based on his nutty theories about the PRA. (This was one of four motions to dismiss based on various bogus legal theories which Trump filed on February 22 — two of which are still pending.)
She ruled that the 32 counts of violating the Espionage Act “make no reference to the Presidential Records Act, nor do they rely on that statute for purposes of stating an offense” — that is, for exactly the reasons that the special counsel objected to her proposed jury instructions. But she bridled at the suggestion that she ought to clarify her own position.
“[T]o the extent the Special Counsel demands an anticipatory finalization of jury instructions prior to trial, prior to a charge conference, and prior to the presentation of trial defenses and evidence, the Court declines that demand as unprecedented and unjust,” she huffed, protesting that her prior order was simply “a genuine attempt, in the context of the upcoming trial, to better understand the parties’ competing positions and the questions to be submitted to the jury in this complex case of first impression.”
As Lawfare’s Roger Parloff lays out, this puts Smith in an impossible position. If the judge would commit to this clearly erroneous jury instruction, the special counsel could seek emergency relief in the form of a writ of mandamus from the Eleventh Circuit. And he would have a decent chance of meeting the Supreme Court’s standard for mandamus relief, showing clear error on the part of the trial judge, a lack of an alternative remedy, and irreparable injury if the error is allowed to persist.
If Judge Cannon simply sits on her hands and does nothing, though, challenging her will be a much heavier lift. Because in a normal case with a normal judge, the fact that the jury instructions hadn’t been hammered out at this stage would be no cause for alarm — after all, the case is far behind schedule and is functionally off the calendar for this summer. And even though the judge is contemplating erroneous jury instructions, the Eleventh Circuit is unlikely to grant mandamus relief simply because she refuses to clarify her position immediately.
Say what you will about Aileen Cannon, but she ain’t dumb.
That’s it for today
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We’ll be back tomorrow with more Wednesday. Until then, have a good one and thanks for reading.
Jack Smith should’ve pushed for a different judge when he had the chance….. This woman is a Chump plant. He gave her the job…. If that isnt a reason for bias. Jacks big mistake thus far, and I fear it’s gonna cost America, Bigly……
Don't count Jack Smith out.
He's been at this a lot longer
than Cannon. The 11th circuit
is still in her future and not
that far down the road.