Jack Smith Fires Off Warning to Judge in Trump Docs Case

Special counsel hits at 'fundamentally flawed' jury instructions, threatens oversight
By Arden Dier,  Newser Staff
Posted Apr 4, 2024 10:15 AM CDT
Smith Rips Judge's Move in Trump Documents Case
In this image from video provided by the U.S. Senate, Aileen M. Cannon speaks remotely during a Senate Judiciary Committee oversight nomination hearing to be US District Court for the Southern District of Florida on July 29, 2020, in Washington.   (U.S. Senate via AP)

After toying with the idea that the classified documents allegedly taken and concealed by President Trump might've been his personal records, US District Judge Aileen Cannon has received an unusual "direct challenge" from special counsel Jack Smith, the Washington Post reports. Indeed, in Tuesday's filing, Smith makes clear his opinion that the legal premise embraced by Cannon is "fundamentally flawed" and threatens to take the case to the US Court of Appeals for the 11th Circuit, which could act to remove her from the case. More:

  • Before even ruling on the relevant laws, Trump-nominated Cannon asked both sides to propose jury instructions based on two interpretations of the Presidential Records Act (PRA). The first would allow the jury to decide whether an ex-president had deemed records held as personal or official. The second assumes Trump could make a document personal by not turning it over to the National Archives.

  • But there's no legal basis for this view, writes Smith. It was "invented" by Trump ally and Judicial Watch President Tom Fitton, who isn't a lawyer, in February 2022, "long after he left the White House," according to Smith's filing, which cites a 2021 audio recording of Trump stating he knew he held documents that remained classified.
  • Ultimately, the PRA, differentiating between personal and official records, "should play no role in the jury instructions," Smith adds. This "would amount to nothing more than a recitation of Trump's PRA defense" and "would result in directing a verdict against the Government."
  • Legal experts Joshua Kolb, Danya Perry, and Norman Eisen agree with Smith. "Presidents are not allowed to designate official records as personal ones, so there is no factual issue for a jury to resolve," they write at CNN. They add the PRA defines personal records as materials "of a purely private or nonpublic character" unrelated to the duties of the president, which doesn't apply to the documents in this case.

  • At issue are federal laws, including Executive Order 13526 and the Espionage Act, governing how documents are classified and handled, write Kolb, Perry, and Eisen. But "Cannon seems to think that the PRA somehow supersedes the executive order and the rest of federal law pertaining to the handling of classified materials. It does not."
  • Cannon hasn't said which of the two scenarios she'll consider, and Smith requested she make that clear "promptly." If she backs the legal interpretations outlined, Smith said he'd consider immediate appellate review at the 11th Circuit, which could ultimately result in Cannon's removal from the case.
  • In the 11th Circuit, a judge can be removed from a case for "the appearance of impropriety or a lack of impartiality in the mind of a reasonable member of the public," per CNN. The appeals court previously faulted Cannon for her suggestion that Trump deserves special treatment.
  • "At this stage of the game, her incompetence is so gross that I think it clearly creates the perception of partiality, and her attempt to put her thumb on the scale," former White House attorney Ty Cobb told CNN on Wednesday, per the Hill. "I think that should disqualify her."
  • At the conservative Gateway Pundit, Cristina Laila describes Smith as "completely hysterical" and resorting to threats "because he has virtually no control over Judge Cannon's final jury instructions."
(More Jack Smith stories.)

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