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.
APR 08,
2024
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.
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.
