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Special counsel sharply rebukes Cannon’s jury instruction order in Trump case

Prosecutors
and
attorneys
for
Donald
Trump
submitted
their
hypothetical
jury
instructions
in
the
classified-document
case
late
Tuesday,
revealing
sharp
disagreements
over
how
the
two
sides
interpret
the
basic
legal
issues
at
the
heart
of
the
case
against
the
former
president.

The
filings
come
in
response
to
an
unusual
request
by

U.S.
District
Judge
Aileen
M.
Cannon

in
Florida.
The
judge
last
month
ordered
the
defense
lawyers
and
the
prosecutors
to
file
submissions
outlining
hypothetical
jury
instructions
based
on
competing
interpretations
of
two
laws
related
to
the
case.

Special
counsel
Jack
Smith
pushed
back
hard
against
the
judge,
saying
that
the
jury
instructions
were
based
on
a
“fundamentally
flawed
legal
premise”
and
warned
that
he
may
appeal
if
the
judge
rules
against
him.

Legal
experts
say
Cannon’s
focus
on
jury
instructions
seems
odd
because
a
trial
is
not
imminent
and
the
judge
still
has
a
number
of
decisions
to
make
in
the
pretrial
proceedings
before
the
instructions
are
relevant.
They
also
say
the
premise
of
Cannon’s
orders
indulged
some
mangled
interpretations
of
laws
that
have
been
pushed
by
Trump’s
lawyers
and
supporters.

The
government’s
response
highlighted
its
frustration
with
the
instructions
and
urged
Cannon
to
quickly
decide
on
some
of
these
key
legal
questions

writing
that
if
the
court
“were
to
defer
a
decision
on
that
fundamental
legal
question
it
would
inject
substantial
delay
into
the
trial.”

It
also
warned
that
relying
on
Trump’s
interpretations
of
these
laws
would
“distort
the
trial.”

Trump’s
team
said
Cannon’s
assignment
is
consistent
with
his
position
that
the
“prosecution
is
based
on
official
acts”
he
took
as
president

not
illegal
retention
of
materials.

In
the
assignment,
Cannon
asked
the
lawyers
to
write
jury
instructions
about
the
Presidential
Records
Act,
or
PRA,
which
says
that
presidential
records
belong
to
the
public
and
are
to
be
turned
over
to
the
National
Archives
and
Records
Administration
at
the
end
of
a
presidency.

In
one
scenario,
Cannon
asked
them
to
craft
jury
instructions
that
assume
the
PRA
allows
presidents
to
designate
any
documents
as
personal
at
the
end
of
a
presidency

which
is
what
Trump’s
legal
team
has
argued
he
had
the
authority
to
do.
She
then
said
they
should
also
write
separate
jury
instructions
predicated
on
the
idea
that
jurists
would
be
able
to
determine
which
of
the
documents
Trump
is
accused
of
illegally
retaining
are
personal
and
which
are
presidential.

The
government
has
said
it
is
the
Espionage
Act

not
the
PRA

that
guards
classified
materials.
Trump
is
charged
with
32
counts
of
violating
a
section
of
the
Espionage
Act,
with
each
count
corresponding
to
a
distinct
classified
document
that
he
is
alleged
to
have
retained
after
leaving
office.
He
is
also
charged
with
eight
counts
related
to
alleged
obstruction
of
officials’
efforts
to
retrieve
the
materials.

Trump
pleaded
not
guilty
to
all
charges.

Prosecutors
suggested
in
their
filings
that
they
would
appeal
if
Cannon
decides
to
intertwine
the
PRA
with
the
Espionage
Act
in
jury
instructions.
Trump
is
not
charged
with
violating
the
PRA
and
prosecutors
said
throughout
their
filing
that
the
PRA
should
not
be
in
those
instructions.

“The
PRA’s
distinction
between
personal
and
presidential
records
has
no
bearing
on
whether
a
former
President’s
possession
of
documents
containing
national
defense
information
is
authorized
under
the
Espionage
Act,
and
the
PRA
should
play
no
role
in
the
jury
instructions,”
Smith
wrote
in
his
filing
Tuesday.
“Indeed,
based
on
the
current
record,
the
PRA
should
not
play
any
role
at
trial
at
all.”



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Donald
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In
their
proposed
jury
instructions,
Trump’s
team
leaned
into
their
argument
that
the
former
president
had
the
ultimate
authority
to
determine
the
designation
of
the
documents
that
he
is
accused
of
illegally
retaining.

“You
heard
evidence
during
the
trial
that
President
Trump
exercised
that
authority,
at
times
verbally
and
at
times
without
using
formal
procedures,
while
he
was
President,”
Trump’s
legal
team
wrote
in
the
hypothetical
jury
instructions.
“I
instruct
you
that
those
declassification
decisions
are
examples
of
valid
and
legally
appropriate
uses
of
President
Trump’s
declassification
authority
while
he
was
President
of
the
United
States.”

Cannon,
who
has
been
on
the
bench
since
late
2020,
originally
scheduled
the
trial
to
begin
in
May.
But
that
seems
all
but
certain
to
be
moved
back,

and
the
judge
held
a
hearing
last
month

to
determine
when
the
trial
should
take
place.
She
has
not
yet
ruled
on
a
trial
date.

The
judge
issued
her
jury
instruction
order
a
few
days
after
she
held
an
in-person
hearing
on
two
of
Trump’s
motions
to
dismiss
the
case.

One
of
those
motions
said
the
case
should
be
dismissed
because
the
PRA
meant
that
Trump
could
simply
declare
highly
classified
documents
to
be
his
personal
property
and
keep
them
at
Mar-a-Lago,
his
Florida
home
and
private
club.
Cannon
has
not
yet
ruled
on
that
motion.

She
rejected
another
motion
to
dismiss
that
argued
that
the
Espionage
Act,
which
has
been
used
for
decades
to
convict
others
of
improperly
possessing
classified
documents,
was
too
vaguely
worded
to
be
used
in
his
indictment.

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