Time To Fire The Cannon?

An egregiously erroneous ruling may give Special Counsel Jack Smith the opening he needs to move to recuse Judge Aileen Cannon

Judge Aileen Cannon and Special Counsel Jack Smith. Photos courtesy of Newsweek

We all felt a shudder last year when Judge Aileen Cannon was randomly assigned to preside over Trump’s theft of classified documents case in Florida. She’s both incompetent and a Trump bootlicker, which means she could inflict some real damage as the judge.

This includes delaying the case unnecessarily, which she has already done; issuing terrible rulings that complicate the path to a trial and to Trump’s conviction; and possibly even throwing out the entire case if she can figure out a sneaky way to do it. (More on that nightmare scenario below.)

The best solution has always been to try to get her booted from the case, for the sake of justice and the rule of law, but there hasn’t been a good opportunity to try this.

Until now.

Judge Cannon recently made a ruling on jury instructions that was egregiously, blink-your-eyes-in-disbelief wrong. In her order, she is fixated on something called the “Presidential Records Act” and whether Trump had the power to designate documents he took with him as “personal” rather than “presidential.”

But here’s the thing: The Presidential Records Act isn’t even at issue in this case. The charges are about Trump’s wilful retention of our national secrets. There’s no colorable legal argument, or even anything in the factual record, that would support a defense that Trump designated classified records as “personal” and by this act absolved himself of any criminal liability.

Because her ruling was so wacky, Special Counsel Jack Smith decided to make his move. In a midnight filing on Tuesday, Smith blasted Cannon’s order as legally insupportable, saying that if she didn’t fix this now, he would seek immediate review from the 11th Circuit. The message is clear: Cannon has to tread carefully or she could get reversed again. Given how wrong and apparently biased she’s being, she might even get booted off the case.

In today’s piece, I’ll review Judge Cannon’s ruling, specifically her proposed pair of scenarios underlying draft jury instructions, and explain why they are both wrong and dangerous. Then I’ll summarize, in plain-ish English, the filing by the Special Counsel, which was both on point and appropriately cheeky given how insane her ruling was.

A pair of terrible instructions

As a case moves toward trial, lawyers typically argue over a critical question: What instructions will the judge give the jurors as they head into the room to deliberate?

These instructions shape the logical flow of the jury’s factual findings, so they are critical to get right. There are often “model” jury instructions based on established law, but in cases like this one, where novel questions of law are at issue, the judge often gets to craft or choose bespoke ones.

This shouldn’t be hard. Trump is accused in counts 1 through 32 of violating the Espionage Act, Title 18 of the United States Code, Section 793(e). That law states in relevant part, 

Whoever having unauthorized possession of … any document … relating to the national defense ... willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it

has committed a crime. There isn’t anything in the statute about “personal” records or the ability of a former president to designate national defense documents as such.

Nevertheless, Judge Cannon issued an order spelling out two “competing scenarios” over what “unauthorized possession” means, and she ordered the parties to proceed as follows:

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.

Let me put that in non-lawyerese. Judge Cannon is laying out two scenarios. Each will tackle the question of what “unauthorized possession” means under the law. The parties are then to draft up jury instructions that assumes each scenario is a correct statement of the law.

But here’s the really crazy thing. Neither scenario she set out was a correct statement of the law. She is in effect asking the government to draft jury instructions based on a totally erroneous reading of it.

Here’s her first “scenario.” Read it slowly, as if you were on a jury:

(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).

Simply put, Cannon is saying here that the jury gets to look at each retained classified document and weigh whether the government has proven beyond a reasonable doubt that it is not actually a “personal” record. 

But that’s not what “unauthorized possession” means under the Espionage Act. That is defined by Executive Order (specifically, Executive Order 13526) and its implementing regulations. Those spell out who gets to see what national secrets and how classified documents are handled at all levels. Once Trump became a former president, he was governed by those same rules. He wasn’t someone authorized to possess any documents relating to the national defense because he was no longer president.

Further, and importantly, nowhere in the Espionage Act is some other law—here, the Presidential Records Act—even mentioned or referenced. Judge Cannon doesn’t get to import some definition from an entirely unrelated and irrelevant law for purposes of drafting jury instructions.

Okay, if you’re with me so far, take a deep breath. Because Judge Cannon’s second proposed scenario is totally off-the-charts. Here is what she proposed:

(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.

If your mouth is on the floor after reading that, you’re not alone. Under this scenario, Trump would get to determine for himself what documents are “personal” to him, including our national defense documents! And no judge or jury could say otherwise. And if an outgoing president makes a “decision to exclude” what he considers “personal records,” that’s his business, end of story.

There are multiple things wrong with this. First, there’s no law or regulation that supports this at all. Second, as discussed above, the Presidential Records Act has nothing to do with the Espionage Act, so stop trying to conflate them. And third, if this is her position, why even make this a jury instruction? It says right there that the jury has no power to make or review any categorizations Trump made. That makes this a question of law, not a jury instruction at all.

So, what do you do when the judge is asking you to craft jury instructions based on erroneous law, laid out in two nightmare scenarios? You tell her that you’re going to see the folks upstairs if she won’t fix it.

Jack Smith’s filing

Smith wasted little time in his filing taking apart Judge Cannon’s two “scenarios” and why they are legally erroneous. From my discussion above, you should now be able to understand his central argument:

Both scenarios rest on an unstated and fundamentally flawed legal premise—namely, that the Presidential Records Act (“PRA”), and in particular its distinction between “personal” and “Presidential” records … determines whether a former President is “[]authorized,” under the Espionage Act … to possess highly classified documents and store them in an unsecure facility, despite contrary rules in Executive Order (“EO”) 13526, which governs the possession and storage of classified information.

That legal premise is wrong, and a jury instruction for Section 793 that reflects that premise would distort the trial. 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…. Indeed, based on the current record, the PRA should not play any role at trial at all.

The next part is really key. Smith urges that this question needs to get settled now, not wait for the judge to weigh two competing jury instructions based on mistaken legal premises. If Cannon insists that the PRA is relevant here—which it is not—then she needs to say so now so that Smith can appeal that question. 

Smith first submits his own jury instruction that would be proper under the Espionage Act and the existing Executive Order and implementing rules. He uses a definition of “unauthorized possession” that is consistent with them:

“Unauthorized possession” means possession without official approval or permission. The United States government has adopted rules that govern the possession of classified information. Those rules do not apply to a sitting President but apply to former Presidents after their term in office has ended. Under those rules, an individual’s possession of classified information is unauthorized if that individual does not hold a security clearance or the individual does not have a need to know the information. “Need to know” means an appropriate government official has determined that the individual requires access to the classified information in order to perform or assist in a lawful and authorized government function. In addition, even if an individual holds a security clearance and has a need to know classified information, the individual’s possession of the classified information is unauthorized if the individual removes the classified information from a secure facility or possesses the information outside of a secure facility.

Because Judge Cannon has nevertheless ordered the parties to draft jury instructions based on her faulty legal premises, Smith complies with that request, but he does so in a brilliantly snarky way.

After reciting the same correct definition of “unauthorized possession,” Smith adds a “however” for the ages in scenario one:

I instruct you, however, that, as to a former President, even if he lacks a security clearance, lacks a need to know classified information, and stores information outside of a secure facility, he is authorized to do so if the classified information is contained within a “personal record,” as that term is defined by the Presidential Records Act (“PRA”), a statute that establishes the public ownership of presidential records and ensures the preservation of presidential records for public access after the termination of a President’s term in office.

It gets even cheekier in scenario two, underscoring how ludicrous that option is. This mock jury instruction gets to the question of what constitutes a “personal record” and how Trump is trying to give himself unassailable power:

I further instruct you that a President has unreviewable authority to designate any record whatsoever as personal, regardless of whether it meets the statutory definitions I have just provided. I further instruct you that, if, before the end of his term in office, a President transfers records from the White House to any location other than the National Archives and Records Administration, as alleged in the Superseding Indictment, he has necessarily exercised his unreviewable authority to designate those records as personal and, as a matter of law, he is authorized to possess them and you may not find him guilty.

I imagine the 11th Circuit will find that both rather amusing and compelling.

Why it has to be now

In his filing, Smith emphasizes that he must have this chance to appeal Judge Cannon’s erroneous legal premises before jeopardy attaches. This gets to the heart of what many legal observers have been worrying about.

Quick review: Under the principle of “double jeopardy,” you can’t be tried twice for the same crime. So it’s important to know when “jeopardy” has attached—here, upon the seating of a jury—so that it counts as a trial.

The risk is that, once a jury is seated, Judge Cannon could find as a factual matter that Trump deemed all of the documents he took with him to be “personal.” She could then, as legal expert Joyce Vance has warned, direct a verdict in Trump’s favor or dismiss the case in such a way as to disable the prosecution from appealing. Trump couldn’t be retried because of the rule against double jeopardy, and he could get off entirely.

Smith wants Cannon to adopt his first, non-insane proposed jury instruction and reject the erroneous legal premise that the Presidential Records Act has anything to do with this case. If she won’t do that now, Smith will seek what’s called a “writ of mandamus” to stop her. That might sound like a Harry Potter spell, but it’s just a fancy way of saying a command from the appellate court to the trial court.

In short, Smith has thrown down a legal gauntlet and challenged Cannon to either back down or get a smack down. Smith is likely betting, and hoping, that she won’t agree to his proposed jury instruction and will stick to her guns, giving him the opportunity he needs to move for her recusal.

He may never have a better chance to do so. Watch this space for developments.