Lawyers were puzzled by the Mar-a-Lago trial judge’s order on Monday, which asked the prosecution and defense to suggest jury instructions assuming that the Presidential Records Act (PRA) permitted former President Donald Trump to independently determine that classified documents were personal.
Unsurprisingly, the reaction to U.S. District Judge Aileen Cannon’s order was swift and unequivocal, with some pointing out that likelihood of acquittal has gone up.
Conservative lawyer George Conway called the order the “most bizarre” he’s ever seen a federal judge docket, leapfrogging two other orders Cannon has already issued in the case.
“In the decades that I have been a lawyer, this is the most bizarre order I’ve ever seen issued by a federal judge,” Conway said. “What makes that all the more amazing is that the second and third most bizarre orders I’ve ever seen in federal court were also issued by Judge Cannon in this case.”
Last week, in a hearing held in Fort Pierce, Florida, the judge listened to arguments regarding the dismissal of the case. Throughout the proceedings, Judge Cannon expressed doubt regarding the adequacy of both Donald Trump’s criticism of the Espionage Act and his reliance on the Presidential Records Act (PRA) as grounds for dismissal. She promptly dismissed the notion that the 32 charges against the former president under the Espionage Act were unconstitutionally vague, rejecting the first motion based on these assertions.
Conservative lawyer George Conway, no stranger to Trump-related legal discourse, has publicly expressed his disbelief at the order, describing it as “the most bizarre order I’ve ever seen issued by a federal judge.” This sentiment echoes across the legal community, with former Obama administration “Ethics Czar” Norm Eisen labeling the order as “clumsy & amateurish.”
When special counsel Jack Smith presented his arguments, he underscored, like Eisen, the significance of executive order 13526, which remained in effect throughout Trump’s presidency and during the period covered by the allegations in the Superseding Indictment. The executive order stipulates that classified materials can only be accessed by individuals authorized by appropriate United States officials, who have signed non-disclosure agreements and possess a “need to know” the information.
Smith pointed out that according to the provisions of EO 13526 outlined in the Superseding Indictment, once Trump left office, he lacked authorization to possess classified information, never received a waiver permitting him, as a former President, to possess such information, and stored documents in an unauthorized location for handling classified documents.
By refuting the notion that the Presidential Records Act (PRA) allowed Trump to unilaterally designate national defense information documents as personal belongings, the special counsel reinforced the argument against Trump’s possession of classified materials post-presidency.
Cannon has now directed both the defense and the prosecution to submit proposed jury instructions focusing on the essential elements of the 32 counts of willful retention of national defense information faced by Trump, but within the framework of the Presidential Records Act (PRA), by April 2. She has instructed them to consider two conflicting scenarios and provide alternative draft texts assuming each scenario as a correct interpretation of the law for the jury.
This latter scenario could potentially lead to an acquittal. Attorney reactions intensified further, with suggestions that Smith might have grounds to pursue the “extraordinary remedy” of a writ of mandamus from the U.S. Court of Appeals for the 11th Circuit, a court that has overturned Cannon’s decisions in the past.
Andrew Weissmann, former top lieutenant to special counsel Robert Mueller, asserted that Jack Smith should consider seeking a writ of mandamus following Judge Cannon’s recent display of “legal inanity.” Weissmann suggested that such action could involve petitioning the 11th Circuit appeals court to review and potentially overturn Judge Cannon’s decision, which would mark the third instance of reversal. This scenario could hold significant consequences, potentially leading to adverse outcomes for Judge Cannon.
Relevant articles:
– ‘Most bizarre order I’ve ever seen’: Lawyers were absolutely astonished by Mar-a-Lago judge’s latest move, and some are urging Jack Smith to seek ‘extraordinary remedy’
– Cannon tells lawyers to weigh if Trump conduct can’t be reviewed by courts, The Washington Post, Tue, 19 Mar 2024 04:07:00 GMT
– Lago Judge Rules Jury Sees Top Secret Files or Trump Wins, The Daily Beast, Tue, 19 Mar 2024 08:24:11 GMT
– Trump judge issues classified documents order that leaves legal experts baffled, The Independent, Tue, 19 Mar 2024 16:07:25 GMT