Smith answers Cannon's inane request

Special Counsel Jack Smith issued a scorching response to a request made by Judge Aileen Cannon, who demanded that Government and Donald Trump submit a set of hypothetical jury instructions to two completely erroneous premises that lacked a fundamental understanding of the issues at center of the stolen documents case.

[...]

Smith asserts that the proposed jury instructions would lead to confusion and potential miscarriages of justice. By directing the jury to determine the classification of documents under the PRA, the instructions conflate a factual determination with a legal one, thereby muddying the waters of the case.

[...]

The crux of the issue lies in the interpretation of the Presidential Records Act (PRA) and its relevance to the charges faced by Donald Trump. The Government argues that the distinction between "personal" and "Presidential" records under the PRA should not determine whether the former President's possession of highly classified documents is authorized under the Espionage Act. Smith explains that the PRA should play no role in the jury instructions regarding the elements of the Espionage Act.

[...]

He asserts that if the Court wrongly concludes that the legal premise represents a correct formulation of the law, it must inform the parties well in advance of the trial. This is crucial to allow the Government the opportunity to consider appellate review before jeopardy attaches, laying the groundwork to seek mandamus against Judge Cannon, which could ultimately end in Cannon getting booted from the case.

  Meidas Touch

We can only hope.

Smith provides a detailed account of Trump's actions following his departure from office, demonstrating a consistent acknowledgment that the documents were presidential records.

[...]

Smith explains that Trump's invocation of the PRA is not grounded in any decisions he made during his presidency. Instead, it is portrayed as a post hoc justification concocted after leaving the White House. Smith contends that there is no basis in law or fact for this legal presumption and urges the Court to reject Trump's efforts to inject the PRA into the case.

[...]

He argues that authorization to possess classified information is governed by Executive Order 13526, not the PRA, and that Trump's purported designation holds no legal weight in the context of unauthorized possession.

[...]

Smith provides alternative jury instructions that adhere to the correct legal framework. These instructions clarify that unauthorized possession of classified information is determined by whether an individual holds a security clearance, has a need-to-know basis, and complies with safeguarding regulations outlined in Executive Order 13526. In both hypothetical scenarios, the Special Counsel makes clear that the instructions, as defined by Judge Cannon, would be incorrect. In his conclusion, Smith once again emphasizes that he will be forced to take action should Judge Cannon not reject Trump's erroneous legal premise, which should have never been considered in the first place.

Smith concludes: "If, however, the Court does not reject that erroneous legal premise, it should make that decision clear now, long before jeopardy attaches, to allow the Government the opportunity to seek appellate review. "

UPDATE 03:55 pm: In plainer English...

Rather than take on Cannon’s cockamamie assignment, Smith laid out accurate jury instructions based on the actual charges and law.

Cannon had ordered the parties to “engage with” the Trump team’s recurrent misinterpretation of the Presidential Records Act, which has no legal bearing on the case. Her order also depended on an account of the facts — namely, that Trump may have magically converted all the classified government records at issue into his personal property as he left the White House — that has always been beyond incredible.

In effect, Cannon was ordering the Justice Department to assume that the world is flat and then map a route from Atlantis to Arcadia.

But the order wasn’t just daffy; it was pernicious.

[H]er “Alice in Wonderland” antics seemed designed to avoid issuing a ruling that prosecutors could appeal while also setting the stage for her to adopt Trump’s ridiculous claims after a jury has been impaneled.

That could be a fatal blow to Smith’s case. Once a jury is selected, even a ridiculous order can bring a prosecution to a hard stop because the Constitution’s double jeopardy clause precludes retrial. It would be the judicial equivalent of a perfect crime.

  LA Times/Harry Litman

Some say she's cleverly evil; some say she's incompetent. I don't know, but either is bad for the country.

Cannon has repeatedly indulged silly arguments from Team Trump while eating up weeks and months that prosecutors — and voters — don’t have. She has taken a cut-and-dried case based on overwhelming evidence and made it a long shot to be tried this year, when it matters most.

Her conduct [favoring Trump with delays while avoiding definitive rulings that Smith’s team could readily appeal] has raised the question of when and how Smith could ask the 11th Circuit Court of Appeals to remove her from the case. That would be a heavy lift, and yet Cannon’s earlier bungling of a search warrant in the case was so extreme that another grievous error could justify such an unusual remedy.

[...]

Cannon’s precious thought experiment was not only wrongheaded; it was a dereliction of the court’s basic responsibility to rule on the parties’ motions.

[...]

The government’s 24-page answer states flatly that the judge’s “legal premise is wrong, and a jury instruction … that reflects that premise would distort the trial.” Under the usual rules of discourse between judge and litigants (and especially federal prosecutors), that’s pretty cheeky.

[...]

Smith’s team also put the need for a speedy trial in particularly clear terms: “Whatever the court decides, it must resolve these crucial threshold legal questions promptly. Failure to do so would improperly jeopardize the Government’s right to a fair trial.”

[...]

“The Government must have the opportunity to consider appellate reThe Smith team then made its most important and aggressive move by noting that when judges have issued clearly erroneous jury instructions that doom prosecutions, “courts have permitted the government to obtain writs of mandamus.”

Even buried in a parenthetical as it is, the word “mandamus” jumps off the page as a threat to seek an extraordinary intervention by the appellate court. Smith has laid down the gauntlet, telling Cannon in no uncertain terms that if she doesn’t move to resolve Trump’s frivolous arguments well ahead of trial, he will bring a writ of mandamus to the 11th Circuit along with a motion to recuse her from the case.view well before jeopardy attaches.”

[...]

[T]his brief is the special counsel’s most important in the case since the indictment. Under the circumstances, it’s the strongest possible move to speed the prosecution to a trial before the election. Either Cannon will move the case along, or the department will try to remove her from it.

I vote for the latter.