“I’m very worried”: Legal experts concerned Judge Cannon’s ruling may set up “dismissal” at trial

The judge overseeing former President Donald Trump’s classified documents case on Thursday rejected his bid to dismiss the case under the Presidential Records Act but left open the door to revive the issue during trial.

Trump-appointed U.S. District Judge Aileen Cannon shot down his motion claiming that the Presidential Records Act gave him the right to take classified materials home to Mar-a-Lago, writing that the PRA “does not provide a pre-trial basis to dismiss” the document and obstruction charges.

But Cannon left open the door to revive the issue during the trial, rejecting special counsel Jack Smith’s request to rule quickly after she had both sides submit jury instructions that appeared to lend credence to Trump’s PRA claim.

Cannon wrote that “to the extent the Special Counsel demands an anticipatory finalization of jury instructions prior to trial, prior to a charge conference, and prior to the presentation of trial defenses and evidence, the Court declines that demand as unprecedented and unjust.”

She said her request for proposed jury instructions “should not be misconstrued as declaring a final definition on any essential element or asserted defense in this case.” Rather, it was a “a genuine attempt, in the context of the upcoming trial, to better understand the parties’ competing positions and the questions to be submitted to the jury in this complex case of first impression,” she insisted.

Despite winning on the Presidential Records Act motion, Cannon has “actually given him kind of a loss here,” New York University Law Prof. Ryan Goodman told CNN.

“I think this is not what Jack Smith wanted to hear. If she had ruled now that these could be his personal documents, then Jack Smith can appeal that and have the 11th Circuit reverse her,” he explained.

By refusing to issue a ruling on the jury instructions, Cannon “preserved the option of still presenting scenario one to the jury—in particular if at trial there is evidence that they are ‘personal’ or the defendant declared them to be ‘personal,’” former Mueller prosecutor Brandon Van Grack explained, leaving Trump with a “potential out.”

Cannon’s refusal means she “might wait until AFTER a jury has been sworn-in and jeopardy attaches,” tweeted MSNBC legal analyst Katie Phang. “Once jeopardy attaches, a criminal defendant cannot be tried a second time for the same crime.  This is exactly what Smith is trying to avoid by having Cannon rule on the jury instructions at this stage. Cannon is sticking her finger in Smith's face and telling him to do something about it.”

“If Cannon instructs the jury incorrectly and Trump is found not guilty as a result, Smith *could not appeal* the not guilty verdict,” agreed former federal prosecutor Renato Mariotti.

Former Watergate prosecutor Jill Wine-Banks predicted that Cannon may be “setting up a post-jury being seated dismissal when jeopardy has attached so her dismissal cannot be appealed.”

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The order makes a “mess” of the case and suggests there is “no way that this case was gonna get tried before the election,” argued CNN legal analyst Elie Honig, adding that it “forecloses” on Smith’s opportunity to seek to remove the judge if she ruled against him.

“This is why I think Jack Smith is concerned with today’s ruling,” he said. “Although he won in the sense that the court did not dismiss the charges, if I’m Jack Smith – and I think Smith feels the same way – I’m very worried about this defense going to a jury because it’s confusing, because it’s complicated, because it’s technical. And prosecutors always want to tell a simple, straightforward story. And frankly, defendants want to muck things up. And as much as I think this defense lacks merit, I do think it could confuse a jury in a way that would worry me as a prosecutor.”

Smith could still seek to kneecap Trump's defense before the trial, however.

"The next fight will be motions in limine, where DOJ will say Trump should be excluded from arguing this defense at trial," predicted national security attorney Bradley Moss.