Jack Smith is Done With Aileen Cannon

Judge Aileen Cannon’s proposed jury instructions “rest on an unstated and fundamentally flawed legal premise,” the chief prosecutor in Donald Trump’s classified documents case has said.

Special Counsel Jack Smith wrote to Cannon, a Trump appointee, stating that her proposed instructions risked “distort[ing] the trial” that Trump is facing in Florida.

On March 18, Cannon released proposed instructions to the jury suggesting that Trump may have had a legal right under the Presidential Records Act [PRA] to declare presidential records as personal property after leaving office.

A judge’s instruction to the jury frames the issues they must review before they consider a person’s guilt or innocence.

Trump is accused of illegally retaining classified documents, hoarding them at his Mar-a-Lago resort in Florida and obstructing attempts by federal officials to retrieve them.

Aileen Cannon and Jack Smith
Special Counsel Jack Smith has written to Judge Aileen Cannon warning that her proposed instructions risk “distort[ing] the trial” that Trump is facing in Florida.

Getty Images

Smith’s filing on Tuesday stated that if Cannon includes wording allowing the jury to decide that Trump had a right to hold presidential records as personal items, then she should allow prosecutors time to appeal her decision to a higher court.

In their own filing, Trump’s lawyers said that Cannon had “correctly stated the law.”

“If this case is presented to a jury – which it should not be – the jury would be forced to resolve factual issues relating to not only PRA categorizations but also documents’ alleged classification status,” Trump lawyers said in a filing on Tuesday.

Newsweek reached out to Trump’s attorney for comment on Wednesday.

In the March 18 order, Cannon asked prosecutors and Trump’s lawyers to “engage with” her two prospective jury instructions about what it means to have “unauthorized possession” of classified documents, per the wording of the charges against Trump.

Her second proposed instruction appears to suggest that the jury is permitted to consider the classified documents as Trump’s personal items.

Roger Parloff, a senior editor at the legal website, Lawfare, said that this would “require the jury to find that Trump, by the mere act of removing the documents to his home at the end of his term, had exercised unreviewable discretion to designate them as ‘personal’ under the Presidential Records Act.”

Prosecutors have long fought any suggestion that Trump was legally permitted to declare classified documents at his personal belongings, and have said in previous court filings that such an interpretation of the Presidential Records Act is unlawful.

Much of Trump’s case rests on whether he was allowed to retain presidential records.

Under the Presidential Records Act, which was implemented in the wake of President Richard Nixon’s Watergate scandal, all presidential documents must be sent to the National Archives and Records Administration [NARA] when the commander in chief leaves office, as they belong to the federal government.

If an outgoing president wishes to have their official documents publicly presented, such as in a library, they must seek permission from NARA, and the materials must remain under NARA custody.

The trial is scheduled for May 20, but Cannon is expected to postpone the start of proceedings in a future decision.