Legal analyst says Judge Cannon's instructions could effectively win Trump’s case

 March 20, 2024

Judge Aileen Cannon issued an order on Monday in which she told Special Counsel Jack Smith and former President Donald Trump's legal team to propose jury instructions related to alleged mishandling of classified documents.

The move could prove crushing to Smith, with one left-wing legal expert complaining that Cannon is "contemplating instructions that could effectively win Trump’s case for him."

Controversy over Presidential Records Act

That claim was made in an opinion piece on Tuesday from MSNBC contributor and former New York prosecutor Jordan Rubin.

Rubin noted that the instructions are consequential, as they "are what a jury will use to consider whether special counsel Jack Smith has proved his case beyond a reasonable doubt."

Cannon's proposed instructions make reference to the Presidential Records Act (PRA), a piece of legislation which Trump says empowered him to deem certain government records as being "personal" in nature and remove them from the White House.

Two scenarios examined

The instructions cover competing scenarios, with the first proposal stating,

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).

Meanwhile, Cannon's second proposed set of instructions reads,

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.

Rubin expressed derision for both proposals, asserting that "neither 'scenario' is recognized under the law" and that "both risk confusing the jury as to its proper role."

Rubin suggests Smith may file an appeal

"The second one, especially, could throw the case in Trump’s favor," Rubin continued, adding that "Cannon has either injected" the PRA "into the trial or is seriously considering doing so."

The author predicted that "Trump’s lawyers probably want to say, 'Looks great,' while Smith’s team probably wants to say, 'Looks nuts.'"

Rubin further wondered "whether Smith decides this is the last straw that finally warrants taking her up on appeal to try and salvage the case."

" A free people [claim] their rights, as derived from the laws of nature."
Thomas Jefferson
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