Jack Smith Confronted Trump-Appointed Judge Cannon In Blistering Filing, Threatened “Appellate Action”

Jack Smith is NOT messing around.

596 points

Trump-appointed Judge Aileen Cannon, who is presiding over the stolen classified government documents case against Donald Trump, has all but made it clear that she is doing as much bidding from the inside as she can for the man who put her in the career position she enjoys today — and DOJ-appointed Special Counsel Jack Smith has had enough.

Smith and his team have been forced to fight tooth and nail against Cannon and her Trump-friendly decision a multitude of times over, across a wide host of different issues throughout this massive criminal case, as critics point out that Cannon appears to be doing everything in her power to slow this trial down to a near halt for the man who appointed her.

Most recently, Judge Cannon delivered an order requesting jury instructions incorporating scandal-ridden ex-President Trump’s “erroneous” defense legal premise.

Special Counsel Smith is having no part of it.

Smith made his frustrations crystal clear in a blistering new filing, responding to Cannon’s recent order to submit proposed jury instructions that consider “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.

In his response, Smith eviscerates these instructions as fatally flawed.

The Special Counsel launches one hell of a torpedo in his opening paragraphs, threatening “appellate action” against the Trump-appointed judge:

The Court has issued an order (ECF No. 407) 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, see 44 U.S.C. § 2201 (2), (3), determines whether a former President is “[]authorized,” under the Espionage Act, 18 U.S.C. § 793(e), 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. 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. See ECF No. 373 at 5-12. Indeed, based on the current record, the PRA should not play any role at trial at all.

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.” ECF No. 407 at 2. 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.

Smith does not hold back on the shade when he refers to Cannon’s proposed jury instructions as “The Jury Is Incorrectly Instructed”:

The Jury Is Correctly Instructed that Unauthorized Possession Is Based on Executive Order 13526, Not on the PRA.

The Government’s proposed preliminary instruction for Counts 1 through 32 is as follows:10 Counts 1-32: Willful Retention of National Defense Information 18 U.S.C. § 793(e)

Counts 1 through 32 of the Superseding Indictment charge defendant Trump with the willful retention of national defense information in violation of Title 18 of the United States Code, Section 793(e). The statute provides, in pertinent part: “[w]hoever having unauthorized possession of . . . any document . . . relating to the national defense . . . willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it,” commits a crime.

The DOJ Special Counsel burnt Cannon and her orders to the ground in his closing, writing “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.”

Enough is enough.

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