"This is a big deal": Experts say Judge Cannon's order signals "bad news" for fate of Trump case

Cannon's refusal to rule out Presidential Records Act defense may lead to "worse outcome" for Jack Smith at trial

By Tatyana Tandanpolie

Staff Writer

Published April 6, 2024 5:45AM (EDT)

Donald Trump and Jack Smith (Photo illustration by Salon/Getty Images)
Donald Trump and Jack Smith (Photo illustration by Salon/Getty Images)

U.S. District Judge Aileen Cannon on Thurday denied Donald Trump's dismissal motion in his Florida federal criminal case, tossing out the former president's argument that the Presidential Records Act (PRA) turned classified records into his personal documents after he left office.

But Cannon, in her decision, also declined to rule on special counsel Jack Smith's request for clarity on the jury instructions she asked the parties to submit and did not signal whether she believed the PRA could constitute a permissible defense that Trump could raise later, according to The Washington Post

Her refusal leaves open the possibility for the PRA to come back to bite during trial — and legal experts warn that could lead to problems down the line. 

The "good news" for the special counsel is that Cannon rejected Trump's motion to dismiss the case based on the PRA argument, Barbara McQuade, a University of Michigan law professor and former U.S. attorney, told Salon. But the "bad news" is that Cannon indicated her decision is a "pretrial ruling only" and that she could dismiss the case later on those grounds should Trump raise it as a defense. 

"That would actually be a worse outcome for Jack Smith because he would be unable to appeal once a jury has been sworn in," McQuade said.  

The judge's decision came three weeks after she held a hearing on the presumptive GOP nominee's PRA motion and two days after Smith rebuffed the presumed thinking underlying her request for proposed jury instructions.

On Tuesday Smith urged Cannon in a court filing to decide "promptly" on whether the interpretation of the PRA the jury instructions were based on, which seemed to align with Trump's perspective of the act, represents her position. He warned that, should that be the case, he would appeal her before trial, noting that such a viewpoint stems from a "fundamentally flawed legal premise."

Cannon, in her latest, three-page order, rebuked Smith's request, writing that "to the extent the Special Counsel demands an anticipatory finalization of jury instructions prior to trial, prior to a charge conference, and prior to the presentation of trial defenses and evidence, the Court declines that demand as unprecedented and unjust.”

Her request for the proposed jury instructions last month "should not be misconstrued as declaring a final definition on any essential element or asserted defense in this case,” the judge said Thursday. "Nor should it be interpreted as anything other than what it was: 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."

Cannon's response, the Post notes, reveals her discontent with Smith's "characterization" of her order requesting the instructions. But even with the explanation she provided, her response to Smith is "bizarre" because she introduced the issue to begin with, former federal prosecutor Neama Rahmani told Salon. 

"Normally you don't talk about jury instructions until well into trial, and we don't have a trial date, not a confirmed trial date yet. So the fact that she's entertaining this nonsense, number one, doing it when she's doing it, well before trial, and refusing to issue a final ruling on it — it's just either bizarre or just outright biased depending on your view of things," he said, adding that he would expect that "when a judge asks for something that he or she rule on it."

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In seeking the proposed jury instructions, Cannon described two scenarios for the parties to consider in their responses, both of which misstated what the PRA does, according to legal experts. In one scenario, Cannon requested instructions that assume the PRA empowers the president to claim any documents as personal at the end of a presidency, which Trump has claimed. She also directed the parties to write instructions for a scenario in which the jury has to determine whether the documents Trump is accused of illegally retaining are presidential or personal. 

Trump faces 32 felony counts of violating the Espionage Act, which governs classified materials, each for a specific document prosecutors say he illegally retained at his Florida resort club after leaving office. The former president has pleaded not guilty to those charges and the other eight felony counts against him in connection with alleged attempts to obstruct government efforts to retrieve the sensitive records.

Cannon's ruling against Trump's motion based on the PRA — "a civil law that has no relevance to the criminal charges — could signal that she won’t inject it into a wacky jury instruction," writes Jordan Rubin, a former New York prosecutor and the legal blog writer for MSNBC's "Deadline."

By declining to rule on the jury instructions matter, Cannon could be "punting" the matter "for now," David Schultz, a Hamline University professor of legal studies and political science, explained, noting that that approach reflects a "more typical" pattern because judges "traditionally" do not address jury instruction issues "upfront."

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But Cannon neglecting to address Smith's objections raises "a little bit" of concern for how she may conduct the trial and what she may consider with respect to the PRA, he said. 

"It could potentially speak to how it still might guide the judge in terms of conducting the trial, in terms of, perhaps, how she might rule on future motions or objections during the trial," Schultz speculated, reiterating that her waiting to rule on jury instructions, as is typical, could be a good sign. 

Waiting to issue a decision could also benefit the special counsel "in the sense of saying that they get to present their case closer to what they think the triers of fact should be thinking about in terms of what the law is regarding the Presidential Records Act," Schultz added. Trump "clearly would love" for the judge to accept one of those two jury instructions because of how, based on Cannon's approach, it could have determined the course of the trial.

Her ruling, though "maybe not a home run" for Smith, is "a good development on one level for the prosecution's case," Schultz said. 

On another level, however, Cannon's decision not to rule on the legal premise underlying the instructions puts Smith at a disadvantage because, without a "definitive ruling," he can't appeal to the 11th Circuit Court of Appeals before trial should he find it necessary, Rahmani explained. 

Even if the judge were to issue an "incorrect ruling, it's better than no ruling at all because it does give him the opportunity to go to the 11th Circuit," he said. "What you don't want is incorrect jury instruction in the middle of trial or at the end of trial that goes to the jury and then there's an acquittal. That's a problem. You can't really appeal an acquittal because of double jeopardy."

Without a ruling on the jury instructions, it's "unclear what, if anything" Smith will do about the matter, Rubin writes, speculating that Smith may "decide to take the win (such as it is) and live to fight another day."

Rahmani expects Smith to continue pushing Cannon to issue a ruling and seek a writ of mandamus from the appellate court, which would order her to fulfill her official duties and "follow the law essentially," if the judge doesn't make a decision. 

At this stage, McQuade added, Smith's "best option" may be to file a motion in limine, asking Cannon to "preclude any reference whatsoever" to the PRA ahead of trial so that he can appeal to the 11th Circuit if she rules against him. 

"This is a big deal because the judge is going to entertain this argument that the records are personal and not presidential and allow jurors to consider this issue, which really, it's a legal issue that should be decided by the judge," Rahmani argued. "That's a problem."

By Tatyana Tandanpolie

Tatyana Tandanpolie is a staff writer at Salon. Born and raised in central Ohio, she moved to New York City in 2018 to pursue degrees in Journalism and Africana Studies at New York University. She is currently based in her home state and has previously written for local Columbus publications, including Columbus Monthly, CityScene Magazine and The Columbus Dispatch.

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