Experts say Smith's response to Cannon's recent order was "forceful" but "appropriate"

Attorneys for Donald Trump and federal prosecutors submitted hypothetical jury instructions in the former president's classified documents case late Tuesday, with special counsel Jack Smith also delivering a scathing rebuke of the presiding judge's order requesting them. 

U.S. District Judge Aileen Cannon last month ordered both parties to draft and file hypothetical jury instructions drawing from competing interpretations of two laws related to the case, a request legal experts have said is unusual, The Washington Post reports. 

In his team's filing, Smith rebuffed the judge, arguing that the jury instructions were based on a "fundamentally flawed legal premise.” He asked the Trump-appointee to "promptly" decide whether the "unstated legal premise" undergirding her order represents the court's view of a "correct formulation of the law," warning that he may appeal if the court finds "wrongly" that it does.

Though Smith's response to Cannon's recent order was "forceful," it was "appropriate," former federal prosecutor Neama Rahmani told Salon.

"Judge Cannon is wrong on the law. She's consistently wrong on the law and . . . she has entertained every one of Trump's frivolous arguments," he said, adding: "The fact that Jack Smith has clearly signaled that he's going to appeal — I mean she's got to think long and hard about this order that she's gonna issue."

The special counsel's response to Cannon underscored his team's frustration with the exercise. He told Cannon, who was appointed to the federal bench in 2020 and whose relative inexperience as a judge has earned her much scrutiny, that relying on Trump's interpretations of the laws in question would "distort the trial."

If the court “were to defer a decision on that fundamental legal question it would inject substantial delay into the trial," Smith added in the 24-page filing. 

Legal experts have emphasized that Cannon's focus on jury instructions at this point in the case seems "odd" because the trial date is uncertain and she has a number of remaining pretrial decisions to make before the instructions become relevant, The Post notes. Rahmani told Salon that jury instructions are not typically crafted until "well into the case, often in the middle of the trial."

"The fact that she's doing this is very out of the ordinary — doesn't make any legal sense," he said. 

Experts have also noted that the premise of Cannon's orders signal she has entertained some convoluted interpretations of laws that Trump's lawyers and supporters have put forth. 

In the defense's filing, Trump's legal team said Cannon's instructions exercise aligns with his position that the "prosecution is based on official acts” he took as president and not illegally retaining materials as he's been accused of, according to The Post. 

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The judge asked the lawyers to create jury instructions about the Presidential Records Act (PRA), which makes presidential records government property and requires they be turned over to the National Archives and Records Administration after that president leaves office. 

In one of the two scenarios Cannon presented, the Florida judge asked the parties to draft jury instructions that assume the PRA allows the president to claim any documents as personal at the end of a presidency, which is what Trump's legal team has argued. The second asks the parties to write jury instructions based on the notion that jurists would be able to delineate which of the documents Trump is accused of illegally keeping as personal or presidential. 

Based on that request, David Schultz, a Hamline University legal studies and political science professor, said he believes Cannon "misunderstands the law."  

"Her suggestions for jury instructions really reflect a complete misunderstanding of the Presidential Records Act," he told Salon. "I think that's what Smith is really criticizing or saying: that either of the two possibilities — in terms of asking for proposals for jury instructions — are just based on the fundamentally flawed notion of what the Act requires."

Cannon is "conflating the Presidential Records Act and the Espionage Act," Rahmani added. "She is abdicating her duty, and this is something that she needs to decide, not a jury. It's a question of law, not a question of fact."

The government has countered that it is the Espionage Act — not the PRA — that governs classified materials. Trump stands charged with 32 counts under the Espionage Act and faces eight felony charges related to alleged attempts to obstruct the government's document retrieval efforts. Trump has pleaded not guilty to all charges.

The trial was originally scheduled to begin in May but that date "seems all but certain to be moved back," The Post notes. A hearing last month to determine when the trial should occur did not provide any clarity as to when trial may begin, and Cannon has not yet ruled on a date. 

Schultz suspects that if Cannon doesn't decide "very quickly" to change the legal premise of the proposed jury instructions, Smith will appeal to the 11th Circuit Court of Appeals "just about immediately." 

Rahmani agreed, underscoring that the special counsel is working to move the case forward and get to trial "as quickly as possible."

An appeal, however, would result in a procedural delay in the case that could push proceedings out "weeks or months," he said, explaining that, should Trump be reelected before the case goes to trial, it "has to be dismissed" based on longstanding Justice Department policy against prosecuting a sitting president.  

Still, Rahmani hopes that Cannon will make the legally correct decision in response to Smith's filing, at least, for her sake.

If the government "appeals again — and she will be reversed — again, it would be her third reversal, and we haven't even gotten to trial yet," he said, referencing the 11th Circuit's previous reversals of Cannon's pre-indictment decisions during the investigation of Trump's retention of classified documents.

Cannon had appointed a special master to review the records the FBI seized in August 2022 from Trump's Mar-a-Lago property. The appellate court first overturned her rejection of a stay on the special-master order that the Justice Department requested. The court later reversed her appointment of the special master altogether.

"At a certain point, you'd have to care about your reputation as a judge and not being a laughingstock, which really [is] what she is quickly becoming in the legal community," Rahmani said, also arguing that Cannon's decisions have been "consistently in Trump's favor" and "consistently wrong."

"If past precedent tells us anything, she's going to continue along the same path," he added. "But maybe, just maybe, she'll realize the error in her ways and get things right. It's tough to predict because she's an unpredictable judge."