Jack Smith slams judge’s handling of Trump classified documents case over ‘fundamentally flawed’ order

Special counsel Jack Smith has slammed the judge presiding over Donald Trump’s federal classified documents case over an order in which she asked prosecutors and defence lawyers to file proposed jury instructions based on a “fundamentally flawed legal premise”.

Judge Aileen Cannon, who the former president appointed, appeared to accept an argument Mr Trump is pushing that he was entitled to retain sensitive documents at his home in Palm Beach, Florida, under a statute known as the Presidential Records Act (PRA).

The order, filed on 19 March, baffled legal experts and commentators and alarmed Mr Smith’s team. Prosecutors argue in a filing late on Tuesday that the 1978 law — which requires presidents to return presidential records to the government upon leaving office but allows them to keep purely personal ones — has no relevance in the case, which concerns Mr Trump refusing to return highly sensitive classified documents.

Materials retrieved by the federal agents during their search of the former president’s home at his private members’ club, Mar-a-Lago, were clearly not personal and there is no evidence to suggest that they were ever designated as such by Mr Trump.

Further, prosecutors argue that the suggestion that the former president did designate them as personal was “invented” only after it became public that he was in possession of boxes upon boxes of records from his time in office that should have been returned to the National Archives.

They also note that none of the witnesses interviewed in their investigation of how the boxes came to Mar-a-Lago, and what happened over the months in which the government tried to retrieve them, support Mr Trump’s version of events.

“Not a single one had heard Trump say that he was designating records as personal or that, at the time he caused the transfer of boxes to Mar-a-Lago, he believed that his removal of records amounted to designating them as personal under the PRA,” prosecutors wrote. “To the contrary, every witness who was asked this question had never heard such a thing.”

Mr Smith’s team said that if Judge Cannon insists on citing the PRA in her jury instructions, she should let the lawyers know as soon as possible so they can appeal.

Lawyers for the government have been continually exasperated by Judge Cannon’s handling of the case, which has also perplexed legal experts.

She has yet to rule on multiple defence motions to dismiss the case as well as other disagreements between the two sides, and the trial date remains uncertain.

It is increasingly suspect that a case featuring what Mr Smith’s team describe as overwhelming evidence could be unresolved by the time of the November presidential election.

The judge was widely criticised for allowing Mr Trump’s team’s request for an independent arbiter to review the documents at the heart of the case, seized by the FBI during their search of Mar-a-Lago in August 2022.

In March, she heard arguments on two motions from the defence to dismiss the case: that the PRA permitted him to designate the documents as personal, that he was therefore allowed to retain them, and that the issue was “constitutionally vague”. Judge Cannon appeared sceptical of their arguments and threw out one motion.

Only a few days later came the extraordinary order concerning jury instructions.

Both sides were asked to write instructions in response to the premise: “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.”

She continued by saying that an outgoing president’s decision to exclude personal records from those returned to the government “constitutes a president’s categorization of those records as personal under the PRA.”

Prosecutors say that interpretation of the law is wrong and urged Judge Cannon to move quickly and reject the defence motion to dismiss.

“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 on the elements of Section 793,” they wrote, citing the statute that makes it a crime to illegally retain national defence information.

“Indeed, based on the current record, the PRA should not play any role at trial at all,” they added.

This view is shared by many observers. Noting how “woefully unclear” Judge Cannon’s language was, legal commentator and MSNBC host Katie Phang pondered: “The PRA is clear. As is the Espionage Act. Not sure why Cannon is struggling with these concepts.”

National security lawyer Bradley Moss posted on X: “This second scenario is legally insane. If that were the case, then just grant Trump’s motion to dismiss on PRA grounds so DOJ bring it to the 11th circuit for a quick reversal.”

Longtime Trump foe George Conway was even more scathing: “In the decades that I have been a lawyer, this is the most bizarre order I’ve ever seen issued by a federal judge. What makes that all the more amazing is that the second and third most bizarre orders I’ve ever seen in federal court were also issued by Judge Cannon in this case.”

He later wrote: “Okay, I’ve seen enough.  Not only should Aileen Cannon not be sitting on this case, but she should not be sitting on the federal bench at all. This is utterly nuts.”

The former president is facing dozens of criminal charges relating to his handling of classified documents in his time since leaving the White House.

This is just one of the four criminal cases against Mr Trump — the others are the Manhattan hush-money case, the federal election interference case, and the Fulton County election interference case.

He insists he has committed no crimes and believes he is being politically persecuted.

With additional reporting from the Associated Press.