Special counsel Jack Smith is likely to appeal U.S. District Judge Aileen Cannon’s order after she asked both sides to submit a set of jury instructions that may favor former President Donald Trump’s legally dubious defense in the classified documents case.
Cannon last month ordered Smith and Trump to submit proposed jury instructions around competing interpretations of the Presidential Records Act. The PRA requires a president to turn over all documents to the National Archives at the end of the administration but Trump has argued it actually gives him the right to deem government materials as personal.
Former New York Assistant Attorney General Adam Pollock predicted that Smith would submit the proposed jury instructions as required and wait to her Cannon’s determination.
“Then he’ll have an appealable order,” Pollock told MSNBC on Sunday, adding that Smith may appeal before Cannon sets a trial date.
"This is completely putting the cart before the horse," he said. "The judge is signaling, as she has signaled from the get-go, that she doesn't believe in this case, that she doesn't believe the case is warranted, and she's stacking the deck in favor of the defendant."
Pollock noted that an appellate court previously reversed Cannon’s rulings in the case “on multiple occasions.”
"I would expect that if there is an order on these jury instructions, as she's already signaling she is likely to order, that he'll go right back to the appellate court,” he said.
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