April 13, 2024
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Judge Cannon gave a set of really strange instructions to both sides recently regarding jury instructions for Trump’s criminal obstruction case. Have not been able to figure out if she’s just completely incompetent or corrupt (or might be a lack of experience being a judge) , but either way, really, her last disaster had to be addressed by the special prosecutor.

From March 18, 2024

The judge overseeing Donald Trump’s classified-documents case issued an unusual order late Monday regarding jury instructions at the end of the trial — even though she has not yet ruled on when the trial will be held, or a host of other issues.

U.S. District Court Judge Aileen M. Cannon instructed lawyers to file proposed jury instructions by April 2 on two topics that are related to defense motions to have the indictment dismissed outright.

Cannon, a relatively inexperienced judge who was nominated by Trump and has been on the bench since late 2020, listened to arguments about the two defense motions last week.

In that hearing, she sounded skeptical that Trump’s attack on the Espionage Act, or his embrace of the Presidential Records Act, were strong enough to save the former president and likely 2024 Republican White House nominee from a criminal trial. At the same time, she suggested that aspects of Trump’s arguments might be valid enough to come into play during jury instructions.


The order that triggered the inquiries was one that Judge Cannon, of the Southern District of Florida, issued four days after a hearing in Fort Pierce at which she had heard arguments on two of Trump’s seven motions to dismiss. The order asked the parties to “engage with” two prospective jury instructions relating to the term “unauthorized possession,” an element of the crime of “willful retention” of national defense information under 18 U.S.C. Section 793(e), which is the offense charged in the first 32 counts of the indictment. Many observers were particularly alarmed by the second of her two proposed instructions, which appeared to require the jury to find that Trump, by the mere act of removing the documents to his home at the end of his term, had exercised unreviewable discretion to designate them as “personal” under the Presidential Records Act. That was so, the instruction effectively said, even if the documents did not remotely fit the definition of “personal” provided in that act. Furthermore, since the instruction related to the definition of “unauthorized possession” in Section 793(e), it appeared to be saying that Trump had authority to possess the charged documents—thus inviting or requiring jurors to acquit. Her other proposed instruction was less shocking but still quite controversial; it called for the jury to decide whether the classified documents in question were “personal” under the PRA. In the government’s view, these highly classified documents could not have been personal as a matter of law and, furthermore, their status under the PRA was wholly irrelevant to whether Trump’s possession was “unauthorized,” which was a matter determined by the terms of Executive Order 13526.

There is no question that Judge Cannon’s order of March 18 is not itself reviewable by an appellate court, as it rendered no decision on anything. It merely invited the parties to brief and react to Judge Cannon’s proposals by April 2.

from Civil Discourse explaining the “jeopardy attaches” issue with regard to an issue Trump can bring up again at trial

If the Judge had ruled against the government today, the Special Counsel could have appealed. But that’s not the case if, after today’s ruling in the government’s favor, she permits Trump to resurrect the motion at trial. She could grant the motion to dismiss the case then and at that point, with very rare exceptions (that the Judge would be in a position to prevent), the government can’t appeal. That’s because once a jury has been empaneled, double jeopardy “attaches” and prevents the government from retrying the defendant on the same charges if he’s acquitted, which is what would happen if the Judge granted a motion to dismiss at that point and before a jury rendered a guilty verdict.

And from Digby’s Hullabaloo

Basically (not a lawyer here), Cannon is teeing up for the jury a reason to acquit Trump based on a bogus reading of the law: Trump’s. (Not exactly. We’ll get to that.) His legal team alleges he had a right to take classified defense secrets under the Presidential Records Act (PRA). The DOJ calls that “a post hoc justification that was concocted more than a year after he left the White House,” and maintains it is the Espionage Act that governs classified documents. Trump faces 32 counts of violating that act.

Also Emptywheel

Smith — as many predicted — spent much of the filing arguing that Cannon cannot leave this issue until jury instructions because it must have an opportunity to seek mandamus for such a clear legal error; they cite the 11th Circuit slapdown of Cannon’s last attempt to entertain this fantasy in support.

Along the way, though, Smith also did something I had hoped he would do: explain where, and when, Trump’s own whack theory came from in the first place.

It came from Tom Fitton’s Xitter propaganda in response to the public report, in February 2022, that Trump had returned documents, including classified ones. But even after Fitton first intervened, Trump’s handlers continued to treat any remaining classified documents as presidential records for months.

One more excellent article about what this means.

In his filing, Smith emphasizes that he must have this chance to appeal Judge Cannon’s erroneous legal premises before jeopardy attaches. This gets to the heart of what many legal observers have been worrying about.

Quick review: Under the principle of “double jeopardy,” you can’t be tried twice for the same crime. So it’s important to know when “jeopardy” has attached—here, upon the seating of a jury—so that it counts as a trial.

The risk is that, once a jury is seated, Judge Cannon could find as a factual matter that Trump deemed all of the documents he took with him to be “personal.” She could then, as legal expert Joyce Vance has warned, direct a verdict in Trump’s favor or dismiss the case in such a way as to disable the prosecution from appealing. Trump couldn’t be retried because of the rule against double jeopardy, and he could get off entirely.

Smith wants Cannon to adopt his first, non-insane proposed jury instruction and reject the erroneous legal premise that the Presidential Records Act has anything to do with this case. If she won’t do that now, Smith will seek what’s called a “writ of mandamus” to stop her. That might sound like a Harry Potter spell, but it’s just a fancy way of saying a command from the appellate court to the trial court.

I didn’t write much about it at the time because I was waiting to see what Jack Smith did in response. There was a chance he would immediately take this to the 11th court of appeals; this would not be the first time that Cannon was reversed by same, but one big problem is that Cannon did not do *orders* that could be appealed, I believe because she purposely did not want to get appealed, since it was so humiliating for her before in 2022 when the 11th circuit revered her order to appoint a special master to oversee review of classified materials seized from Trump.

The reply came in last night from Jack Smith (PDF)

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.

This is key

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. See, e.g., United States v.
Wexler, 31 F.3d 117, 129 (3d Cir. 1994) (“[T]he adoption of a clearly erroneous jury instruction
that entails a high probability of failure of a prosecution—a failure the government could not then
seek to remedy by appeal or otherwise—constitutes the kind of extraordinary situation in which
we are empowered to issue the writ of mandamus.”);
In re United States, 397 F.3d 274, 283 (5th
Cir. 2005) (courts “have permitted the Government to obtain writs of mandamus when a proposed
criminal jury instruction clearly violated the law, risked prejudicing the Government at trial with
jeopardy attached, and provided the Government no other avenue of appeal”); United States v.
Pabon-Cruz, 391 F.3d 86, 91-92 (2d Cir. 2004) (similar).

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.

Furthermore, even though resolution of the threshold legal question is purely a matter of
law, the Court should be aware at the outset that Trump’s entire effort to rely on the PRA is not
based on any facts. It is a post hoc justification that was concocted more than a year after he left
the White House, and his invocation in this Court of the PRA is not grounded in any decision he
actually made during his presidency to designate as personal any of the records charged in the
Superseding Indictment. Accordingly, before turning to the jury instructions, the Government
below provides the Court with the factual context surrounding Trump’s attempt to inject the PRA
into these proceedings. Importantly, Trump has never represented to this Court that he in fact
designated the classified documents as personal.
He made no such claim in his motion to dismiss,
in his reply, or at the hearing on March 14, 2024, despite every opportunity and every incentive to
do so. As discussed below, the reason is simple: he never did so. Instead, he has attempted to
fashion out of whole cloth a legal presumption that would operate untethered to any facts—without
regard to his actual decisions, his actual intent, the unambiguous definition of what constitutes
personal records under the PRA, or the plainly non-personal content of the highly classified
documents that he retained. There is no basis in law or fact for that legal presumption, and the
Court should reject Trump’s effort to invent one as a vehicle to inject the PRA into this case

The sections of Jack Smith’s filings regarding Trump’s attempts or lack of to designate records as presidential show clearly Trump’s “post hoc legal invention”.


Incidentally, here is a link to Executive Order 13526.

Any jury instructions premised on the erroneous legal suppositions set forth in Scenario (a)
would necessarily be deeply flawed. Scenario (a) posits that the jury would be instructed to
determine as a factual matter whether the documents charged in Counts 1 through 32 qualified as
presidential or personal records as defined in the PRA. But that would be asking the jury to make
a factual finding with no proper legal connection to the charges in this case because the PRA
designation is irrelevant to the issue of authorization under Section 793, and thus is not relevant to
whether Trump was authorized under Executive Order 13526 to possess classified documents at
Mar-a-Lago. The PRA does not speak to authorization to possess classified information, let alone
in an unsecured facility.

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

Some videos to explain this. First, about the Judge Cannon order where she is asking both sides to do jury instructions, ie leaving it up to the jury to decide the facts of the case BEFORE the case is heard

Link to video discussing this.

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