Judge Cannon advises lawyers to consider whether Trump’s conduct cannot be subject to judicial review

by | Mar 19, 2024

Southern District of Florida

The judge overseeing Donald Trump’s classified-documents case issued an unusual order late Monday regarding jury instructions at the end of the trial.

U.S. District Court Judge Aileen M. Cannon directed lawyers to submit proposed jury instructions by April 2 on two subjects linked to defense motions seeking the outright dismissal of the indictment. Cannon heard arguments regarding the two defense motions last week.

During the hearing, she indicated that certain aspects of Trump's arguments may warrant consideration for inclusion in the jury instructions.

Cannon's emphasis on jury instructions, typically provided just before deliberations commence, indicates her early focus on the conclusion rather than the beginning of such proceedings.

Her two-page order hints at a willingness to consider some of the defense's assertions regarding the Presidential Records Act, which purportedly permits Trump or other presidents to designate highly classified documents as their personal property.

Cannon requested that the prosecutors and defense attorneys consider two different hypothetical situations, stating “the parties must engage with the following competing scenarios and offer alternative draft text that assumes each scenario to be a correct formulation of the law.”

In the first scenario outlined by Cannon, the jury would be permitted to examine a former president's possession of a record and determine whether it qualifies as personal or presidential based on the definitions outlined in the Presidential Records Act (PRA).

Cannon's addition of a footnote mentioning “separation of powers or immunity concerns” to be included in the discussion, if relevant, was unclear because immunity is typically a matter for judges to decide, not juries.

In the second scenario outlined by Cannon, a president possesses sole authority under the Presidential Records Act (PRA) to classify records as personal or presidential during their presidency. In this scenario, neither a court nor a jury is permitted to make or review such categorization decisions.

The second hypothetical scenario suggests a situation where it would be challenging to convict Trump of improperly possessing classified documents under nearly any set of circumstances.

Following the hearing last week, Cannon issued a brief order stating that while some of Trump's arguments regarding the Espionage Act merit “serious consideration,” she deemed it premature to dismiss charges based on disagreements over certain terms in the World War I-era law.

However, she indicated that Trump could revisit the issue later in relation to jury instruction briefing or other suitable motions. This invitation seems to have prompted Monday's order.

During the hearing last Thursday, although the focus was not on these motions, Trump's lawyers made several references to other public officials who were not charged despite the presence of classified documents at their residences, including the recent decision by special counsel Robert K. Hur not to charge Biden. The defense argued that these cases demonstrate the unjustified and politically motivated nature of the charges against their client.

Throughout the hearing, Cannon repeatedly questioned how prosecutors differentiate Trump's actions from those of other former officials. She could schedule additional motions hearings at any time.

Source: The Washington Post



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