Jack Smith Gets a Bit of What He Wanted

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In the 10 months that she has overseen Donald Trump’s classified documents case, Judge Aileen Cannon has issued a raft of curious decisions and entertained claims from the defense that many federal judges would have rejected out of hand. She’s also allowed a pileup of unresolved legal issues to grow so thick that it’s threatening to delay any trial from taking place until after the election in November.

This week, the special counsel Jack Smith signaled he’d had enough.

In an unusual display of frustration, Smith wrote in a court filing on Tuesday night that one of Cannon’s recent orders wasn’t merely slowing down the case, but was based on “a fundamentally flawed legal premise” — not the sort of thing you typically hear a prosecutor saying to a judge.

Smith laid out his own solution to the problem he believed that Cannon had created: The judge, he said, should issue a ruling on one of Trump’s most brazen defenses in the case, and she should do so quickly, affording prosecutors the chance to appeal if she decides against them.

Today, Cannon gave Smith a bit of what he had asked for — but not everything.

She issued a ruling, just like he’d requested, rejecting Trump’s attempt to escape prosecution by arguing that he had converted the highly sensitive records he took from the White House into his own personal property. But she didn’t kill the argument altogether, suggesting that she might allow something similar to be raised in front of the jury during trial.

The dispute, while specific to the classified documents prosecution, points to the broader ways in which Trump’s lawyers have managed to gum up his criminal cases, including those in Washington and Georgia based on similar charges of plotting to subvert the 2020 election.

His legal team has repeatedly thrown sand into the gears of the proceedings, grinding them to all but a halt with endless waves of motions, many of them bordering on frivolous.

Trump’s team privately has been open about the strategy of delay, delay, delay — and it has been so successful in fact that, at this point, it is possible that only one of Trump’s four trials will go in front of a jury before voters go to the polls. That would be his trial in Manhattan on charges of covering up a sex scandal surrounding his 2016 presidential campaign, which is set to start on April 15.

From the start, Trump’s attempt to use a law known as the Presidential Records Act to lay personal claim to highly classified papers was a stretch.

The assertion is dubious on its face given that the statute was put in place after the Watergate scandal not so that presidents could unilaterally designate government documents as their own personal property, but for the opposite reason: to ensure that most remained in the possession of the government. In an earlier part of the classified documents case, the appeals court that sits over Cannon said that Trump “neither owns nor has a personal interest in” the documents at issue.

Even Cannon herself balked at the idea last month at a hearing in Florida, telling Trump’s lawyers that their interpretation would effectively “gut” the Presidential Records Act. But then, within days of the hearing, she suddenly seemed to reverse herself, ordering the defense and prosecution to send her proposed jury instructions that suggested she was still open to embracing the defense.

What she wanted from both sides was language designed to help potential jurors understand how the Presidential Records Act might affect the central allegation in the case: that Trump had taken “unauthorized possession” of the documents he removed from the White House.

The order was unusual for a number of reasons, not least because jury instructions are typically hashed out on the eve of trial and Cannon hasn’t even set a trial date yet despite the fact both sides have said they could be ready for one by summer.

But it was even stranger because by appearing to remain open to Trump’s position on the Presidential Records Acts, Cannon seemed to be willing to consider nudging any eventual jurors toward finding him not guilty. Her order left open another possibility: that she herself might acquit the former president near the end of the trial by summarily declaring that the government had failed to prove its case.

Hoping to avoid either of those pitfalls, Smith responded to the order by telling Cannon that the Presidential Records Act had absolutely no relevance to the case and that the defense Trump had based on it was “pure fiction” created “out of whole cloth” and “untethered to any facts.” Smith also said that Cannon’s own plan to receive jury instructions based on the act was completely wrong headed and rested on a “fundamentally flawed legal premise.”

What he wanted was for Cannon to decide the validity of the Presidential Records Act defense in a different way: by rejecting Trump’s motion to dismiss the case based on the same argument.

And today, she did just that. But while her order rejected Trump’s attempts to kill the case with a Presidential Records Act defense, it suggested that the conversation about how the act might show up during the trial itself would continue.

Cannon, in fact, chided Smith for wanting to end the discussion about jury instructions “prior to the presentation of trial defenses and evidence,” calling that request “unprecedented and unjust.”

She also defended her decision to ask both sides for their dueling takes on jury instructions.

Her request, she wrote, should be interpreted as “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.”

In other words, it may not be the last we hear about the Presidential Records Act.


We’re asking readers what they’d like to know about the Trump cases: the charges, the procedure, the important players or anything else. You can send us your question by filling out this form.

What is the penalty if Trump violates the gag order? — Gabriel Portuondo, East Hampton, New York.

Alan: Trump is facing gag orders in both his Manhattan-based trial on charges of covering up a sex scandal surrounding his 2016 campaign and in Washington where he stands accused of plotting to subvert the 2020 election. And the most likely penalty that would be imposed on him if he violates either one would be monetary fines. It is possible, but very unlikely, that either judge would put him in jail.


Trump is at the center of at least four separate criminal investigations, at both the state and federal levels, into matters related to his business and political careers. Here is where each case currently stands.

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