'Wrong': Prosecutors blast judge's proposed jury instructions in Donald Trump's classified documents trial
Federal prosecutors argued Tuesday that U.S. District Judge Aileen Cannon's proposed jury instructions are “flawed” and “wrong” in former President Donald Trump’s trial on charges he hoarded classified documents after leaving the White House.
Justice Department special counsel Jack Smith urged Cannon to rule quickly on the jury instructions and on her view of whether Trump can be charged under the Espionage Act. Trump contends the law doesn’t apply to him and Smith threatened to appeal if Cannon rules in the former president’s favor interpreting the law.
The dispute is about what role the Presidential Records Act (PRA) plays in the case. Trump contends he converted the classified records to personal records under the PRA as he carted them to Mar-a-Lago at the end of his administration. But Smith argues Trump told no one of the decision and it wouldn’t matter if he did because the PRA doesn’t govern classified documents.
Trump’s and Smith's replies filed Monday were in response to Cannon proposing two jury instructions that basically followed the former president’s argument. One potential instruction would have told jurors that they and the court had no power to review Trump’s decision to keep the records.
“That legal premise is wrong, and a jury instruction for (the Espionage Act) that reflects that premise would distort the trial,” Smith wrote in his filing. “Indeed, based on the current record, the PRA should not play any role at trial at all.”
Trump's lawyers argued the Espionage Act is too vague and he can't be charged under it
Trump’s lawyers, Todd Blanche and Christopher Kise, repeated their request to Cannon to throw out the charges under the Espionage Act as too vague. They argued any jury instructions would require “judicial gloss” and therefore the law as applied to Trump would be “unconstitutionally vague and ‘no law at all.’”
“Setting aside the vagueness problem, (the statute) remains on the books, but it does not prohibit the conduct alleged by the Office against President Trump,” Blanche and Kise wrote.
Cannon has rejected the vagueness argument once but has no deadline to decide on jury instructions. Smith has asked her to decide “promptly” for a potential appeal, to avoid having her reject his argument during the trial, when it could upend the entire case.
“The Government must have the opportunity to consider appellate review,” Smith wrote.
Smith's team has already appealed and overturned two of Cannon's decisions that aimed to block or delay scrutinizing the classified documents seized in an FBI search of Mar-a-Lago in August 2022 at the 11th U.S. Circuit Court of Appeals.
Judge asked for input on jury instruction saying courts, juries can't review Trump's actions
Cannon’s request for both sides to “engage” with two possible jury instructions came after a hearing in which she didn’t resolve the dispute over whether the documents fell under the Presidential Records Act.
In one proposed instruction, Cannon said jurors should “make a factual finding as to whether the government had proven beyond a reasonable doubt” the records are personal or presidential.
In the other, Cannon proposed telling jurors “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 as categorization decision.”
The Presidential Records Act designates all presidential records public property to be stored at the National Archives. Exceptions are made for personal documents such as birthday cards a president receives while in office.
Trump has argued he designated the records as personal under the PRA while still president, so he was allowed to take them to Mar-a-Lago. But prosecutors said during their "exhaustive investigation" interviewing Trump's former chiefs of staff, White House counsel and national security adviser, "not a single one" heard him say he was designating the records as personal.
"To the contrary, every witness who was asked this question had never heard such a thing," Smith wrote.
What charges does Trump face?
Trump is charged with retaining about 100 national defense documents dealing with secrets such as defense and weapons capabilities of U.S. and foreign countries, and U.S. nuclear programs, and then conspiring to hide them at his club Mar-a-Lago in Florida. The FBI seized them among thousands of other records during a search in August 2022.
He faces 40 charges in the case, including 32 counts of illegally retaining national defense documents under the Espionage Act, conspiracy to obstruct justice and concealing records. He and two co-defendants, Walt Nauta and Carlos De Oliveira, have pleaded not guilty.
Trump's lawyers argued both of Cannon's proposed jury instructions "are consistent with President Trump’s position that this prosecution is based on official acts that President Trump took during his first term in Office."
This article originally appeared on USA TODAY: Prosecutors: judge's jury instructions 'wrong' in Trump documents case
