In a late-night filing on Tuesday, April 2, 2024, Special Counsel Jack Smith pushed back against an unusual instruction from the U.S. District Judge Aileen M. Cannon, overseeing the Trump classified documents case. Like Smith, veteran national security lawyers and former judges condemn the order.
They say it badly misinterprets the Presidential Records Act and laws related to classified documents. Also, Jack Smith warned the judge that she is pursuing a legal premise that “is wrong.” Smith said he would appeal to a higher court if Cannon rules that federal records law can protect the former President from prosecution.
The special counsel’s filing represents the most high-stakes confrontation between the judge and the prosecutor yet. It also illustrates the extent to which a ruling by Cannon legitimizing the PRA as a defense could yank the case, one of four Trump is facing as he again runs for President.
Since Jack Smith hinted at appealing such a ruling, the classified documents trial could extend well beyond November’s presidential election.
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In February 2024, Cannon ordered defense lawyers and prosecutors to submit hypothetical jury instructions based on two different and very much contested readings of the PRA. Jack Smith said Cannon was pursuing a “fundamentally flawed legal premise.”
He said the law overrides Section 793 of the Espionage Act, which Trump allegedly violated by stashing hundreds of classified documents. For context, Trump stashed classified documents at Mar-a-Lago, his Florida home and private club, after his presidency ended.
“That legal premise is wrong,” Jack Smith wrote. “And a jury instruction for Section 793 that reflects that premise would distort the trial.” In addition, Smith said the Presidential Records Act “should not play any role at trial at all.”
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Smith’s filing was a surprise, as prosecutors rarely seek confrontations with judges overseeing their cases. Therefore, the filing shows that he sees significant potential danger for his prosecution from Cannon’s approach to the PRA issue.
However, the special counsel’s filing has put Cannon in a bind. How Cannon, a Trump nominee who has been on the bench since late 2020, responds will be under scrutiny. If she rules against Smith, he could appeal. If she retreats from the disputed legal premise, the issue could fade into the background as she reschedules the trial.
In the meantime, Trump will stand trial starting April 15 in New York for falsifying business records. Trump allegedly falsified his business records to cover up a hush money payment during the 2016 election. In addition, the former President is facing two other criminal cases for the 2020 election interference charges.
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However, Jack Smith has said the PRA has nothing to do with Trump’s national security crimes. The special counsel’s view echoes that of many legal experts, who say a ruling in Trump’s favor would set a dangerous precedent.
They argue it would allow future presidents to claim personal ownership of national defense secrets. Smith also warned that waiting until the trial is underway to rule on the issue could doom the prosecution’s case before it gets to a jury.
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