Jack Smith Throws Fit Over Possible Jury Instructions That May Sink His Case

2024-04-03 18:15:14

I wish I and we had more time and people to follow the nuances of the various Trump prosecutions. We mostly write when something substantial happens.

Something substantial happened yesterday in the Florida prosecution involving records Trump removed from the White House and the feds claim violated the Espionage Act for Trump to possess. Most of the documents in question were recovered in the Mar-a-Lago Raid two years ago. There also were obstruction charges added later for Trump allegedly concealing documents and instructing staff to delete surveillance video (the video never was deleted).

On March 18, Judge Aileen Cannon, who the lefty media rails against daily, issued an Order with regard to potential jury instructions, particularly instructions as to Trump’s defense that he was entitled to remove any record he designated as personal:

With respect to the proposed language pertinent to the issue of “unauthorized possession” specifically, the parties must engage with the following 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, while reserving counterarguments.

(a) 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).3

(b) 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.

Trump filed his Response yesterday:

President Donald J. Trump respectfully submits this response to the Court’s March 18, 2024 Order regarding proposed jury instructions relating to Counts 1 through 32 of the Superseding Indictment. ECF No. 407. Attached as Exhibit A are proposed jury instructions addressing scenario (a) from the Court’s Order, with annotations and additional sub-exhibits providing supporting legal authorities.1

Attached as Exhibit B is a proposed verdict form relating to scenario (a), which uses Count 1 as an example for each of Counts 1 through 32. Scenario (b) from the Court’s Order is addressed below in connection with President Trump’s renewal of his pretrial motion to dismiss Counts 1 through 32 on vagueness grounds, and because the Court’s correct statement of the law in scenario (b) means that Counts 1 through 32 fail to state an offense under Rule 12(b)(3)(iv).

This important exercise further illustrates that crafting instructions applying the Espionage Act in this case would require recourse to “judicial gloss” and other authorities not included in or authorized by the statute, such as Executive Order 13526 and the Presidential Records Act (“PRA”). Therefore, as applied to President Trump, § 793(e) is unconstitutionally vague and “no law at all.” United States v. Davis, 139 S. Ct. 2319, 2323 (2019). We therefore renew President Trump’s void-for-vagueness challenge, ECF No. 325, which the Court denied without prejudice on March 14, 2024, “to be raised as appropriate in connection with jury-instruction briefing and/or other appropriate motions,” ECF No. 402.

Special Counsel Jack Smith also submitted his Response yesterday, and its getting a lot of media attention. His fury could barely contain itself on the pages, he practically called the Judge names and threatened to go to the 11th Circuit because either of the alternative formulations could sink his case (emphasis added):

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…. If, for example, the Court concludes—as posited in Scenario (a) in the Court’s order—that under the Espionage Act a former President is authorized to possess any document that the jury determines qualifies as a personal record as defined by the PRA, that would wrongly present to the jury a factual determination that should have no legal consequence under the elements of Section 793. Likewise, if the Court concludes—as posited in Scenario (b)—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,” Wexler, 31 F.3d at 129, and the Government must be provided with an opportunity to seek prompt appellate review.

There was a lot of bluster from the usual suspects bashing the Judge and cheering Smith’s aggressiveness.

It’s not at all clear this is going to help the prosecution with this Judge.

If the feds want go to the 11th Circuit before trial, they may get their wish. But this Judge still will be the judge for the trial.


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