Jack Smith Takes Cannon to Law School
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If you’ve been Listening to the Jack Podcast, or following myself or any number of legal pundits on social media, you’re no doubt aware that Judge Cannon issued an order on March 18th directing both parties - Jack Smith and team trump - to engage with two scenarios and “offer alternative draft text that assumes each scenario to be a correct formulation of the law to be issued to the jury, while reserving counterarguments.”
The law she’s referring to is the Presidential Records Act (PRA). The two competing scenarios she’s basing this order on are:
In a prosecution of a former president for allegedly retaining documents in violation of 18 U.S.C. § 793(e), 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).
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.
The trouble is, a president does NOT have authority to categorize classified records as personal. The judge is asking the government to write jury instructions based on a misinterpretation of the law.
Judge cannon should be the one to interpret the law, and if her interpretation of the PRA is that presidents can categorize classified documents as “personal records”, then she should say so and dismiss the charges. The problem for her is that the 11th circuit has already ruled that classified documents are not personal records, and if she dismisses the charges based on that misinterpretation, Jack Smith can appeal to the 11th circuit. Judge Cannon is avoiding that at all costs because they bench slapped her the last time she ruled incorrectly on this specific issue.
She has also denied without prejudice trump’s motion to dismiss the charges based on the PRA, allowing him to bring up this exact issue again down the road. If he brings it up after the trial jury is empaneled, and she grants trump a dismissal, the government will not be able to re-file the charges because double jeopardy attaches after the jury is empaneled.
The government had until tonight to respond to her order asking for jury instructions based on the misinterpretation of the PRA. Legal experts including Andrew Weissman posited that Jack Smith could respond by asking the 11th circuit for a writ of mandamus, ordering Judge Cannon to withdraw her weird jury instruction order. I thought the government might respond saying “we are unable to write jury instructions based on a misinterpretation of the PRA.” Some said the government might just follow the order as written.
It looks like we got a combination of all three.
The Court has issued an order directing the parties to file preliminary proposed jury instructions and verdict forms for Counts 1-32 of the Superseding Indictment, with a specific requirement that the parties “engage with [two] competing scenarios and offer alternative draft text that assumes each scenario to be a correct formulation of the law to be issued to the jury.” Both scenarios rest on an unstated and fundamentally flawed legal premise—namely, that the Presidential Records Act (“PRA”), and in particular its distinction between “personal” and “Presidential” records, determines whether a former President is “authorized,” under the Espionage Act to possess highly classified documents and store them in an unsecure facility, despite contrary rules in Executive Order (“EO”) 13526, which governs the possession and storage of classified information.
That legal premise is wrong, and a jury instruction for Section 793 that reflects that premise would distort the trial.
Moreover, it is vitally important that the Court promptly decide whether the unstated legal premise underlying the recent order does, in the Court’s view, represent “a correct formulation of the law.” 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. The Government must have the opportunity to consider appellate review well before jeopardy attaches.
“[T]he adoption of a clearly erroneous jury instruction that entails a high probability of failure of a prosecution—a failure the government could not then seek to remedy by appeal or otherwise—constitutes the kind of extraordinary situation in which we are empowered to issue the writ of mandamus.”
As instructed by the Court, the Government below provides a clear and well-supported jury instruction for the elements of Section 793(e). The proposed instruction correctly instructs the jury that the element of unauthorized possession depends on the plain language of the statute, Executive Order 13526, and the executive order’s implementing regulations, and it makes no mention of purported designations under the PRA. As required by the Court’s order, the Government also provides proposed jury instructions that incorporate the inaccurate legal premises reflected in the Court’s order under Scenario (a) and Scenario (b).
Jack Smith basically says “you’re basing your order on a misinterpretation of a law that has no bearing on this case, and if you think it does you have to tell us now so we can drag your ass to the 11th circuit before double jeopardy attaches, and if you DO try to pull this off at trial, we will seek a writ of mandamus. I’ve written a PROPER jury instruction, and since you ordered me to, I’ve written the erroneous and completely stupid jury instructions you directed us to write.” I’m paraphrasing, of course.
He then rubs it in a little and calls his jury instruction Government’s Proposed Jury Instruction: The Jury Is Correctly Instructed that Unauthorized Possession Is Based on Executive Order 13526, Not on the PRA.
Then when it comes time to write up the jury instructions Cannon asked for, he titles the first one: Scenario (a): The Jury Is Incorrectly Instructed that the Defendant Is Authorized to Possess Any Personal Record, Regardless of Classification, and the Jury Is Then Asked to Determine Whether Each Document Is Personal or Presidential
And he calls the second one: Scenario (b): The Jury Is Incorrectly Instructed that the Defendant Is Authorized to Possess Any Record that He Designated as Personal, and Is Further Incorrectly Instructed that, by Failing to Transfer the Charged Documents to NARA, the Defendant Made the Unreviewable Decision to Designate the Charged Documents as Personal
I love his style. I really do.
He then concludes with this: For the reasons set forth above and in the Government’s opposition to Trump’s motion to dismiss based upon the PRA, the Court should reject the legal premise that the PRA’s distinction between personal and presidential records has any bearing on the element of unauthorized possession under Section 793(e). As such, it should deny Trump’s pending motion to dismiss and adopt preliminary jury instructions as proposed by the Government above. If, however, the Court does not reject that erroneous legal premise, it should make that decision clear now, long before jeopardy attaches, to allow the Government the opportunity to seek appellate review.
That last bit is something I referred to as “Dismiss or get off the pot.”
You can read the full filing here.
