Lawyers were perplexed by the Mar-a-Lago trial judge’s directive on Monday, requesting the prosecution and defense to suggest jury instructions based on the assumption that the Presidential Records Act (PRA) permitted former President Donald Trump to unilaterally classify documents as personal. The reaction to Judge Aileen Cannon’s directive was prompt and unequivocal, with some observing a higher likelihood of acquittal.
Conservative lawyer George Conway described the directive as the “most peculiar” action he had ever seen a federal judge take, sidestepping two previous directives issued by Cannon 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.”
When special counsel Jack Smith submitted his arguments, he, like Eisen, emphasized that executive order 13526 — “in force throughout Trump’s Presidency and through the allegations in the Superseding Indictment” — states that classified materials “can be accessed only by a person who an appropriate United States official determines is eligible for such access; who has signed an approved non-disclosure agreement; and who has a ‘need to know’ the classified information.”
“Under the provisions of EO 13526, the Superseding Indictment alleges, once Trump left office, he no longer had authorization to possess classified information, he never received a waiver entitling him, as a former President, to possess it, and he stored documents at a location that was not an authorized location for the storage, possession, review, display, or discussion of classified documents,” the special counsel said, rejecting the notion that the PRA allowed Trump to declare, by fiat, that national defense information documents were merely personal belongings.
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.
Former special counsel Robert Mueller’s ex-top lieutenant Andrew Weissmann said that mandamus should be on the table for Jack Smith after Cannon’s latest bit of “legal inanity.”
“This is the kind of legal inanity that could lead Jack Smith to seek to mandamus Judge Cannon- ie to get the 11th Circuit appeals court to hear this and reverse her for the third time- which could also be the proverbial three strikes and you’re out,” Weissmann said.
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