Apr 3, 2024 - Politics & Policy

Judge's request in Trump case would "distort the trial," special counsel says

Special Prosecutor Jack Smith

Special counsel Jack Smith at a press briefing in August 2023. Photo: Bill O'Leary/The Washington Post via Getty Images

Special counsel Jack Smith on Tuesday pushed back on a request by the judge overseeing former President Trump's classified documents case.

Why it matters: In a rebuke, Smith's office wrote in a new filing that Judge Aileen Cannon's request was based on a "fundamentally flawed" legal premise.

Catch up quick: Cannon requested in March that the prosecution and defense to submit two versions of potential jury instructions for the trial, CNN reported.

  • One version would ask jurors to determine whether each record retained by Trump could be categorized as "personal" or "presidential" under the Presidential Records Act (PRA). In this scenario, jurors could find some documents were mishandled, per CBS News.
  • The other would ask jurors to assume that Trump had complete authority to take records he wanted from the White House under the PRA, per CNN.

Driving the news: "Both scenarios rest on an unstated and fundamentally flawed legal premise," per Smith's filing, that the PRA's distinction between personal and presidential records determines whether a former president can "possess highly classified documents and store them in an unsecure facility."

  • Jury instructions based on this premise would "distort the trial," in which the PRA should play no role at all, they added.
  • Smith's team added that if Cannon proceeds and includes the PRA in jury instructions, she must inform both parties "well in advance of trial."
  • "The Government must have the opportunity to consider appellate review," they added.

The other side: Trump's lawyers argued in a separate filing that he was authorized by the PRA to "possess a category of documents defined as 'personal records,' both during and after his term in office."

  • Trump also had "absolute and unreviewable authority to declassify documents and information," they added.

State of play: Trump faces 40 counts in the federal case, including charges of willful retention of national defense information and making false statements and representations. He pleaded not guilty last year.

  • Cannon nixed one of Trump's motions to dismiss the charges in the case last month.
  • The trial was originally scheduled to begin in May but a delay is expected. Smith has proposed a July 8 start date, but Cannon has yet to reschedule the proceedings.

Go deeper: Trump trials timeline: Jan. 6, Georgia and classified docs cases in limbo

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