Mr. Smith, appointed by Attorney General Merrick Garland, told U.S. District Judge Aileen Cannon earlier this week that she could face an order from a higher court if she did not change her directive on preparing jury instructions for former President Donald Trump’s upcoming trial.
The matter, which involves interpretations of the Presidential Records Act (PRA), “cannot be deferred,” prosecutors claimed.
Judge Cannon, appointed by President Trump, denied the request.
“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,” she wrote on Thursday.
The back-and-forth concerns the judge’s directive to prosecutors and defendants on proposed instructions for the jury. Judge Cannon in March said the parties should draft instructions that assume two “competing scenarios” are “a correct formulation of the law.” The scenarios are former presidents’ ability to retain personal records under the PRA, and presidents’ ability to designate records as personal.
The charges against President Trump say he illegally kept national defense documents and other sensitive materials beyond his presidency, in violation of the Espionage Act.
President Trump argues he had the ability to designate any document as personal under the PRA and should not be prosecuted.
Prosecutors said the scenarios offered by the judge were based on a “fundamentally flawed legal premise“ and that the PRA ”should not play any role at trial at all.”
The judge must quickly decide whether to clarify the directive, they said. If she kept it in place, they said, an appeal could be lodged with a higher court.
Prosecutors cited a ruling by an appeals court in a separate case that concluded, “The adoption of a clearly erroneous jury instruction that entails a high probability of failure of a prosecution—a failure the government could not then seek to remedy by appeal or otherwise—constitutes the kind of extraordinary situation in which we are empowered to issue the writ of mandamus.”
A writ of mandamus is an order to a lower court.
“The question of whether the PRA has an impact on the element of unauthorized possession ... does not turn on any evidentiary issue, and it cannot be deferred,” prosecutors added. “It is purely a question of law that must be decided promptly. If the court were to defer a decision on that fundamental legal question it would inject substantial delay into the trial and, worse, prevent the government from seeking review before jeopardy attaches.”
Judge Cannon said that her directive on proposed jury instructions “should not be misconstrued as declaring a final definition on any essential element or asserted defense in this case.”
“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,” she said. “As always, any party remains free to avail itself of whatever appellate options it sees fit to invoke, as permitted by law.”
Judge Cannon also turned down the former president’s request to dismiss the charges based on the PRA, in part because the Espionage Act counts do not reference the PRA or rely on it.
“Generally, the superseding indictment specifies the nature of the accusations against Defendant Trump in a lengthy speaking indictment with embedded excerpts from investigative interviews, photographs, and other content. For these reasons, accepting the allegations of the superseding indictment as true, the Presidential Records Act does not provide a pre-trial basis to dismiss ... either as to counts 1 through 32 or as to the remaining counts, all of which state cognizable offenses.”
A trial date is not yet set in the case.
The parties have also been preparing a joint report on when the trial should take place, with references to the Speedy Trial Act. That law requires a trial to begin within 70 days of indictment or arraignment, although it includes a number of exceptions. The joint report is due on or before April 5.
President Trump’s lawyers have already notified the court that he is scheduled to go on trial in New York on April 15 and that they expect the trial to go through the end of May.
“Therefore the dates that we proposed to the court, particularly in late May and early June 2024, are no longer workable for President Trump,” they wrote.
