I just came across this. On March 18, Judge Aileen Cannon ordered (The entire Order is here.) both Special Counsel and defense attorneys to prepare jury instructions for a case she has yet to set a date for a jury trial on. The lawyers have until tomorrow, April 2, to respond in writing.
Before I start parsing this, know that I agree with the unanimous legal community view that this Order is "bizarre", "premature", "legally insane", and like characterizations. Further, as one lawyer has suggested a devil's advocate alternative that Cannon is merely seeking "guidance" from the case lawyers on a future issue, the other possibility being she is trying to tube Jack Smith's case, let me say forthrightly that in my legal opinion she is trying to tube the case. She has not ruled on other motions from both sides that pertain to the evidence to be presented at trial--that is, issues that are chronologically before the jury is instructed. I find clearly and convincingly that Cannon's action and inaction are calculated by her to delay the case through inevitable appeals until after the election which Cannon hopes and believes will result in Trump becoming president again in which capacity he can order his Justice Department to drop both of his federal prosecutions. It is a forlorn hope and belief as President Biden will be reelected, and it is also not the law.
Now to the parsing. Cannon ordered the lawyers to address two, and only two, "scenarios" in their written proposals:
ORDER REQUIRING PRELIMINARY PROPOSED JURY INSTRUCTIONS
AND VERDICT FORMS ON COUNTS 1–32 ONLY
On or before April 2, 2024, Defendant Trump and the Special Counsel each shall file
proposed jury instructions limited to the essential elements of the offenses charged in Counts 1
through 32 of the Superseding Indictment [ECF No. 85]...Moreover, understanding that juries are judges of the facts, not the law, the proposals shall take care to specify (in incorporated briefing as necessary) exactly what factual questions are reserved for the jury on Counts 1 through 32 in light of the recently argued motions to dismiss [ECF Nos. 325, 327].2 With respect to the proposed language pertinent to the issue of “unauthorized possession” specifically, the parties must engage with the following competing scenarios and offer alternative draft text that assumes each scenario to be a correct formulation of the law to be issued to the jury, while reserving counterarguments.
First parse. Cannon is ordering the lawyers to assume a completely incorrect formulation of the law is correct. As one legal eagle said right off the bat Cannon is asking the lawyers to "believe two impossible things before breakfast" in the spirit of Alice in Wonderland.
(a) In a prosecution of a former president for allegedly retaining documents in violation of 18
U.S.C. § 793(e), a jury is permitted to examine a record retained by a former president in
his/her personal possession at the end of his/her presidency and make a factual finding as
to whether the government has proven beyond a reasonable doubt that it is personal or
presidential using the definitions set forth in the Presidential Records Act (PRA).3
Second parse. Cannon wants the jury to see the classified documents without redaction. She wants those highly sensitive state secrets to be made part of the public record. "Hey, did you read our plans under Trump to bomb, bomb, bomb, bomb, bomb Iran?"
Third parse: Cannon does not cite the Espionage Act, which is the charging statute. Trump is not accused of violating the PRA, the PRA has nothing to do with the Espionage Act. The PRA pertains to what is personal and what is presidential. A document can be personal and still be a violation of the Espionage Act if revealed publicly or disseminated to a particularized recipient (like a foreign adversary). Cannon thinks, again wrong, but it is what she thinks, that if the prosecution were based on the PRA her patron, Trump, would stand a better chance at acquittal.
(b) A president has sole authority under the PRA to categorize records as personal or presidential during his/her presidency. Neither a court nor a jury is permitted to make or review such a categorization decision. Although there is no formal means in the PRA by which a president is to make that categorization, an outgoing president’s decision to exclude what he/she considers to be personal records from presidential records transmitted to the National Archives and Records Administration constitutes a president’s
categorization of those records as personal under the PRA.
Fourth parse: Cannon makes "an outgoing", i.e. defeated, president a president for PRA purposes (again ignoring that Trump is not charged under the PRA); she makes a non-characterization a characterization by taking. It is uncontroverted that Trump at now time communicated or memorialized--"Hey Mark, I'm making the Iran war documents mine"; note left for President Biden, "Joe, I decided to make the Iran war documents my personal property"--a decision, "This is personal and I can have it; this is presidential and must go to the National Archives", arrived through a categorization process, even in his mind, at any time during or after his presidency until he got caught with the documents and wouldn't give them back. He took, wouldn't give back, got caught and now says, and Cannon agrees with him, that he can make that presidential decision when he's not president and is a defendant.
Fifth parse. The 11th Circuit Court of Appeals in Cannon’s special master Order held unanimously that Trump “does not have a possessory interest in the documents at issue, so he does not suffer a cognizable harm if the United States reviews documents he neither owns nor has a personal interest in.”
Sixth and final parse: Cannon's two "scenarios" are not merely "competing" but starkly contradictory to each other. The first gives the jury the power to see all state secrets; the second gives the jury, and Cannon, the judge, no power to review an ex post facto non-decision made by an ex-president.
The weight of legal opinion is that Jack Smith will respond as ordered to, that Cannon will rule in a separate Order on which set of jury instructions to give, and that Smith will then appeal that Order. But, he might also use this first Order as a basis to move for Cannon's recusal. That is not, however, the weight of legal opinion. The experts are divided on the efficacy of an interlocutory (before trial) appeal at all. If Smith does appeal on some basis, the appeal will stop the clock, another delay in a case that the judge is trying to tube until after the election. It won't matter, Biden will win the election, but it also isn't justice or even competent, minimally non-biased judging.
