“Things just got very real”: Legal experts say Jack Smith appeal threat “puts Cannon on notice”

Special counsel Jack Smith’s team on Tuesday pushed back against an order the judge overseeing former President Donald Trump’s classified documents case.

Smith and Trump’s lawyers submitted proposed jury instructions in response to an unusual order from U.S. District Judge Aileen Cannon based on competing interpretations of the Presidential Records Act. The PRA requires a president to turn over his documents to the National Archives upon leaving office but Trump has claimed it gives him the right to deem government records as personal property.

Smith’s team in a filing said the jury instructions were based on a “fundamentally flawed legal premise” and asked the Trump-appointed judge to rule before a trial so he can appeal if the court rules against him because any jury instructions that include the PRA 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,” Smith said in the filing. “Indeed, based on the current record, the PRA should not play any role at trial at all.”

“Things just got very real in the classified documents prosecution,” tweeted New York University Law Prof. Ryan Goodman, citing Smith’s threat to appeal in response to “Cannon’s outlandish jury instructions.”

Smith “just threw down the gauntlet” by threatening to immediately appeal if Cannon rules against him to “avoid a miscarriage of justice at trial,” wrote former federal prosecutor Renato Mariotti.

“To make this crystal clear, if trial begins and Judge Cannon makes a ruling that is legally erroneous *in the middle of the trial*, resulting in a not guilty verdict, prosecutors *cannot* appeal the verdict,” he explained. “That's why Jack Smith wants a ruling before trial, so he can appeal.”

National security attorney Bradley Moss said the Smith filing “puts Cannon on notice that he has had enough.”

“The PRA angle is a question of law, not fact, and if she believes Trump’s PRA defense she should grant his motion and let Smith take this to the 11th circuit already,” he wrote.

Trump’s team also submitted proposed jury instructions that read like a “’Choose Your Own Adventure’ that always leads you to ‘Not guilty,’” tweeted Politico’s Kyle Cheney.

Trump’s team said that Cannon’s instructions are consistent with the former president’s position that the “prosecution is based on official acts” he took as president rather than the illegal retention of materials.

Want a daily wrap-up of all the news and commentary Salon has to offer? Subscribe to our morning newsletter, Crash Course.

“You heard evidence during the trial that President Trump exercised that authority, at times verbally and at times without using formal procedures, while he was President,” Trump’s lawyers wrote in the hypothetical jury instructions. “I instruct you that those declassification decisions are examples of valid and legally appropriate uses of President Trump’s declassification authority while he was President of the United States.”

Trump’s team essentially used the jury instructions to “reassert supposed bases for dismissal,” explained former U.S. Attorney Harry Litman.

“Cannon is definitely in a pickle, but has nobody to blame but herself for it,” he wrote.

“The Mar-a-Lago case remains the steepest legal challenge Trump faces,” Mariotti tweeted. “Absolutely devastating evidence that is almost impossible for Trump to overcome. That’s why he is trying to delay and is making absurd arguments about the Presidential Records Act.”