Federal prosecutors chided the judge presiding over former President Donald Trump’s classified documents case in Florida, warning her off potential jury instructions that they said rest on a “fundamentally flawed legal premise.”
In an unusual order, U.S. District Judge Aileen Cannon had asked prosecutors and defense lawyers to formulate proposed jury instructions for most of the charges even though it remains unclear when the case might reach trial.
She asked the lawyers to respond to two different scenarios in which she appeared to accept the Republican ex-president’s argument that he was entitled under a statute known as the Presidential Records Act to retain the sensitive documents he is now charged with possessing.
The order surprised legal experts and alarmed special counsel Jack Smith’s team, which said in a filing late Tuesday that the 1978 law, which requires presidents to return presidential records to the government upon leaving office, but permits them to retain purely personal ones, has no relevance in a case concerning highly classified documents like the ones Trump is alleged to have stored at his Mar-a-Lago estate in Palm Beach, Florida.
Those records, prosecutors said, were clearly not personal and there is no evidence Trump ever designated them as such.
They said that the suggestion he did so was “invented” only after it became public that he had taken with him to Mar-a-Lago after his presidency boxes of records from the White House and that none of the witnesses they interviewed in the investigation support his argument.
Smith’s team said that if the judge insists on citing the presidential records law in her jury instructions, she should let the lawyers know as soon as possible so that prosecutors can appeal.
The filing reflects continued exasperation by prosecutors at Cannon’s handling of the case.
