Even Jury Instructions Are Contentious in Donald Trump’s Documents Case

Welcome back to The Collision! It’s Spring Break Part II, so we’ve got another brief, solo newsletter this week. We’ll take a look at what appears to be some growing tension in the Trump classified documents case down in Florida.

The Docket

• Breaking this afternoon: Judge Aileen Cannon has denied one of Donald Trump’s motions to dismiss the charges in the classified documents case, this one based on the Presidential Records Act. We’ll touch on this down below, but for the purposes of Trump’s motion, Cannon writes that the charges brought by special counsel Jack Smith “make no reference to the Presidential Records Act, nor do they rely on that statute for purposes of stating an offense.”
• This is a helpful series of graphic representations from the New York Times of the way Donald Trump has had to move political donations around to pay for his legal fees so far. This statistic in particular was astounding: “The remarkable sum means that Mr. Trump has averaged more than $90,000 a day in legal-related costs for more than three years — none of it paid for with his own money.”
• Hunter Biden’s June trial for his federal tax charges remains on after U.S. District Judge Mark Scarsi of Los Angeles declined to dismiss the case earlier this week. It was clear from last week’s hearing that Scarsi was unconvinced by Biden’s argument that special counsel David Weiss was politically motivated to bring charges against the president’s son.
• Meanwhile, Judge Juan Merchan ruled Wednesday that Trump’s hush-money criminal trial in Manhattan could proceed even without a ruling from the Supreme Court on the former president’s immunity claim. Trump’s team had made a last-ditch motion to delay the trial over charges Trump falsified business records in order to pay hush money to Stormy Daniels about their affair. The trial is set to begin on April 15.

Prosecutors Pick a Fight Over Potential Jury Instructions

Complaints about Judge Aileen Cannon, the federal judge presiding over Donald Trump’s classified documents case in south Florida, have largely been restricted to ardent critics of the former president. 

These critics have argued that Cannon is biased because of her appointment to the bench by Trump. They point to her order during the federal investigation at Mar-a-Lago that was favorable to Trump (and ended up being reversed by the 11th U.S. Circuit Court of Appeals). And they have grumbled Cannon has slowed down the pretrial period to such a degree that it seems unlikely the case will go to trial before the presidential election—exactly what Trump’s team is hoping for. To be fair, Cannon has not exactly been a rubber stamp for Trump’s legal team, evidenced by her rulings against multiple motions to dismiss the case (including today’s denial).

Now we might add special counsel Jack Smith to the list of those increasingly frustrated with Cannon’s handling of the case, at least based on a close reading of a filing from the federal prosecutor this week. Smith’s filing was in response to a request from Cannon that both sides provide their proposed jury instructions—unusual already because there is still no firm trial date set for the near- or even medium-term. 

But things got even stranger. Cannon requested those instructions grapple with two “scenarios”: competing interpretations of the Presidential Records Act (PRA) that could have bearing on the verdict. The first interpretation is that juries can make a factual finding about whether a retained record is either “personal” or “presidential.” The second is that the PRA grants “sole authority” to the president to categorize a record as either personal or presidential.

A quick note on the PRA: The post-Watergate law was intended to limit which records a president could consider “private” and to provide a process for preserving presidential records and a schedule for releasing them to the public after the end of a president’s term. At bottom, while a diary or campaign materials would be considered personal, pretty much everything else generated by or for a president during his presidency is presidential. There’s no provision in the law for a president to classify or reclassify records as one or the other.

That hasn’t stopped Trump’s team from arguing that his retention of documents he had deemed “personal” could not, therefore, be unlawful, as they did in an earlier motion to dismiss the case. Curiously, Cannon ruled against Trump on this today, as referenced in The Docket above. Yet one of the scenarios in Cannon’s order on the jury instructions seems to accept Trump’s PRA framework.

Smith’s response this week was a blistering criticism of the request. The special counsel wrote that Cannon’s scenarios “rest on an unstated and fundamentally flawed legal premise” that the PRA even applies to the case. Smith added that including such a reference to the law’s distinction between personal and presidential documents has “no bearing” on the question of Trump’s unlawful possession of documents under the Espionage Act—the actual federal law under which most of the charges against Trump are being brought.

“Indeed, based on the current record, the PRA should not play any role at trial at all,” Smith concluded.

But it was what immediately followed that could have some consequences for the trajectory of the case. After expressing his disagreement that this premise would be a “correct formulation of the law,” Smith urged Cannon to “promptly decide” so that Smith could, if need be, appeal before the trial began a decision to include instructions referencing the PRA. That seems to suggest Smith could seek to challenge Cannon’s jury instructions before they’re actually delivered to a jury (which has yet to be selected).

Roger Parloff at Lawfare explores the possibility and precedent of this unusual situation, and it’s worth a read. But needless to say, Smith’s telegraphing that he might pursue an extraordinary action to cut off Cannon’s order is, well, extraordinary.

Further in the filing, Smith illustrates why he might be willing to pull out all the stops to prevent instructions that he says would “distort the trial.” In a nutshell, Smith argues, Trump’s defense relies entirely on “injecting” the PRA into the trial when at no point has Trump ever actually indicated to the court that he designated any of the documents in question as his personal documents while he was still president. And furthermore, instructing the jury to consider this question of whether the documents had been designated personal would be an “error” that unfairly and improperly bolsters Trump’s case.

The filing provides ample evidence Trump only arrived at this defense of his retention of classified documents long after he left the White House and amid the investigation of his possession of the documents. Investigators interviewed numerous members of Trump’s White House staff, Smith wrote.

“Not a single one had heard Trump say that he was designating records as personal or that, at the time he caused the transfer of boxes to Mar-a-Lago, he believed that his removal of records amounted to designating them as personal under the PRA. To the contrary, every witness who was asked this question had never heard such a thing,” reads the filing.

Smith noted that despite the retroactive claims that these documents were designated personal, Trump’s lawyers accepted the premise that they were government-owned presidential documents on numerous occasions, including by complying with subpoenas requesting such documents and at one point claiming in a letter that presidential records were “unknowingly included” in boxes being moved into Mar-a-Lago after Trump’s presidency. Smith even provides evidence that Trump’s argument was “invented” in February 2022 after consultation with the head of the conservative activist group Judicial Watch, Tom Fitton (who, Smith notes dryly, is not actually an attorney).

Reading the filing, one gets the impression of Smith tearing out his hair over Cannon’s order. It’s one thing for the defense to make red herring arguments in trial, but for the presiding judge to risk biasing the jury with instructions that accept that red herring premise? That’s something else.

One More Thing

Back once more to Cannon’s decision today to deny Trump’s dismissal motion, which also contains a sharp response to Smith’s demand for a swift resolution from Cannon on the jury instructions dispute. 

“Separately, to the extent the Special Counsel demands an anticipatory finalization of jury instructions prior to trial, prior to a charge conference, and prior to the presentation of trial defenses and evidence, the Court declines that demand as unprecedented and unjust,” Cannon wrote.

Cannon also sounds a tad defensive about the order in response to any implication that she was putting a thumb on the scale for Trump:

“The Court’s Order soliciting preliminary draft instructions on certain counts should not be misconstrued as declaring a final definition on any essential element or asserted defense in this case. Nor should it be interpreted as anything other than what it was: a genuine attempt, in the context of the upcoming trial, to better understand the parties’ competing positions and the questions to be submitted to the jury in this complex case of first impression.”

She also reminded both sides that they can always pursue an appeal where the law allows. Stay tuned!