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Jack Smith Is Getting Fed Up With Trump’s Classified Docs Judge

Special Counsel Jack Smith went toe-to-toe with U.S. District Judge Aileen Cannon over her requests for jury instructions in Donald Trump’s classified documents case.

In a scathing filing submitted Tuesday, Smith accused Cannon of operating on an “unstated and fundamentally flawed legal premise” when she requested that the parties in the case draft different versions of their proposed jury instructions based on their competing interpretations of laws governing classified materials and presidential records.

Trump has argued that his retention of classified documents after his ouster from the White House was perfectly legal. Claiming that he both unilaterally telepathically declassified the documents, and that they were simply personal records he was already authorized to take. The former president’s trial on 40 charges related to his alleged mishandling of the documents is scheduled to begin in May, but will likely be delayed.

Cannon requested the prosecution and defense explore one scenario in which the jury would be instructed that “a former President is authorized to possess any document that the jury

determines qualifies as a personal record as defined by the PRA,” and asked to determine if the classified records in question qualify as presidential or personal; and another in which they will be instructed that the president has near absolute authority to retain records as they see fit.

Smith took issue with the suggestion that jurors could be presented with an interpretation of the law that would place the Presidential Records Act (PRA) over the Espionage Act. “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,” Smith wrote.

“If the Court concludes […] that a President has carte blanche to remove any document from the White House at the end of his presidency; that any document so removed must be treated as a personal record under the PRA as an unreviewable matter of law; and that, also as a matter of law, a former President is forever authorized to possess such a document regardless of how highly classified it may be and how it is stored, that would constitute a “clearly erroneous jury instruction that entails a high probability of failure of a prosecution,” the special counsel added, noting that they would appeal if such a decision were made.

Smith also argued that the proposed scenarios align not with established legal interpretations but with Trump’s post hoc justifications for keeping the documents.

“Trump has never represented to this Court that he in fact designated the classified documents as personal […] As discussed below, the reason is simple: he never did so. Instead, he has attempted to fashion out of whole cloth a legal presumption that would operate untethered to any facts — without regard to his actual decisions, his actual intent, the unambiguous definition of what constitutes personal records under the PRA, or the plainly non-personal content of the highly classified documents that he retained. There is no basis in law or fact for that legal presumption, and the Court should reject Trump’s effort to invent one as a vehicle to inject the PRA into this case,” Smith wrote.

Cannon, who was appointed by Trump to the U.S. District Court for the Southern District of Florida in 2020, has been criticized for her apparent indecision and slow-walking of major decisions in the case — allowing Trump’s defense team to languish as the former president seeks to delay his criminal trials through the November election.

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