Trump judge issues classified documents order that leaves legal experts baffled

US District Court Judge Aileen Cannon, who is overseeing Donald Trump’s classified documents case in Florida, has issued an unusual order concerning jury instructions that has left legal observers baffled.

On Monday, Judge Cannon instructed lawyers on both sides to file their proposed jury instructions by Tuesday 2 April on two topics related to two defence motions seeking to have the indictment against the former president dismissed outright.

The judge heard the arguments to dismiss the case in a hearing in Fort Pierce, Florida, last week.

During that hearing, Judge Cannon appeared sceptical that neither Mr Trump’s criticism of the Espionage Act nor his embrace of the Presidential Records Act (PRA) were strong enough arguments to dismiss the charges against him.

Indeed, she quickly rejected the notion that the 32 charges against the former president under the Espionage Age are unconstitutionally “vague” – denying the first motion on these grounds.

However, she is yet to rule on the motion to dismiss based on the argument that Mr Trump’s actions are covered by the PRA.

While voicing scepticism about both arguments, she did also suggest that some aspects might be valid enough to be considered by a jury at trial.

Now, Monday’s order concerning those instructions appears to suggest she is not only thinking ahead to a trial but also anticipating its conclusion around this matter.

Judge Cannon wants both the defence and prosecution to submit proposed jury instructions and verdict forms regarding the “essential elements” of the Espionage Act.

In the two-page order, she also suggested a degree of sympathy to some of Team Trump’s claims regarding the PRA allowing commanders-in-chief to declare highly classified documents as personal property — despite national security law experts hotly disputing this.

In the order, Judge Cannon asks the prosecutors and defence attorneys to consider two hypothetical situations.

In the first, the jury would be allowed to review the former president’s possession of classified documents and make a factual finding whether “it is personal or presidential using the definitions set forth in the Presidential Records Act”.

Oddly, she then adds in a footnote that any “separation of powers or immunity concerns shall be included in this discussion if relevant” – despite the immunity question being a matter for judges, not juries, to rule on.

Her second scenario describes one in which a president “has sole authority under the PRA to categorise records as personal or presidential during his/her presidency. Neither a court nor a jury is permitted to make or review such a categorisation decision”.

That second eventuality would appear to be one in which Mr Trump could not be convicted under almost any set of facts of improperly possessing classified documents. This has left legal commentators utterly perplexed, given this is exactly what Mr Trump is charged with.

Noting how “woefully unclear” Judge Cannon’s language is, 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 also posted on X on Monday evening: “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.”

There has been much consternation about Judge Cannon’s role in the case from the get-go given that she was appointed by the former president.

Norm Eisen, a senior fellow at Brookings Governance who oversaw PRA issues at the White House for two years, noted that several things about the two options given by Judge Cannon jumped out at him.

Referring to an op-ed he wrote for CNN in June 2023, Mr Eisen says that the former president’s claim that the PRA justifies his actions doesn’t pass muster because it doesn’t have anything to do with where he was authorised to have the documents in the first place.

Mr Eisen states that while Mr Trump’s legal team argues that, under the PRA, the former president can decide unilaterally what he can keep hold of by simply saying it is personal, the statute in no way stretches the definition to encompass sensitive classified documents – just purely private ones not related to the duties of the president.

At Thursday’s hearing, prosecutor Jay Bratt, part of Special Counsel Jack Smith’s team, argued that even if the former president could deem records as personal, he simply hadn’t.

He pointed to a transcript from a recorded conversation in which Mr Trump discussed classified documents at his club in Bedminster, New Jersey.

“Not only is it premature, it never happened,” Mr Bratt said. “He doesn’t say there, ‘I can show you this because it’s personal.’ ... In fact, he’s saying the opposite.”

As to what this means for the case, Mr Eisen wrote on X: “Cannon seems inclined to push the case to trial but is basically asking if she can stack the deck so Trump wins.

“It’s clumsy & amateurish—seems to know she’s wobbly & she’s asking the parties for help with threshold things that are normally figured out by the judge.

“If she persists in this course, special counsel Jack Smith can & will go to the 11th Circuit. And while he is there, this & several other recent (threatened) blunders give him ammo to have her reversed & removed.”

Mr Trump is facing a 40-count indictment alleging violations of the Espionage Act, obstruction, and the illegal removal of federal records.

Mr Trump is charged with illegally possessing classified documents at his Florida estate after leaving the White House in January 2021.

He is also charged with impeding efforts by the US government to reclaim those documents after he allegedly attempted to hide boxes of classified documents following a grand jury subpoena ordering their return.

Mr Trump’s aide Walt Nauta and Mar-a-Lago property manager Carlos de Oliveira were also indicted in the case.

All three men have pleaded not guilty to the charges and have all moved to dismiss the charges against them.

Mr Trump’s legal team’s motions to dismiss the case add to a growing list of attempts to evade the 91 criminal charges against him in four separate criminal cases in four jurisdictions.