Drama over Trump’s Presidential Records Act Defense in Florida Case Andrew McCarthy
I will have a lot more to say in the weekend column about Biden Justice Department special counsel Jack Smith’s dyspeptic response to Judge Aileen Cannon’s order – which I posted about on Tuesday – requiring prosecutors to respond with proposed jury instructions to two factual scenarios she posited. Both involved the 32 felony charges of unlawfully retaining national-defense intelligence in Smith’s Mar-a-Lago indictment against Donald Trump.
As I observed in the post, Smith had to be dumbfounded by Judge Cannon’s order because the two scenarios she laid out seemed to accept some or all of the former president’s Presidential Records Act (PRA) defense. Indeed, the second scenario appears to buy it wholesale — advising the parties to propose jury instructions on the assumptions that (a) a president is deemed to have designated documents as personal records simply by having caused them to be removed from government safekeeping, and (b) that a president’s decision to designate materials as personal records (which he can keep), rather than presidential records (government property that must be archived) is unreviewable by a court or jury. If that’s the law, Trump gets acquitted on the document-retention counts.
The first scenario is better for Smith in that it anticipates that the jury may review a presidential designation of personal (rather than presidential) records by applying the PRA (i.e., reading Congress’s definitions of personal and presidential records). Nevertheless, although Trump could (and probably would) be convicted in this scenario, Smith objects to it because he believes the PRA is irrelevant to the case — the question of whether Trump was in unauthorized possession of the documents is controlled by the Espionage Act’s plain terms and the executive order that governs handling of classified documents (EO 13256, promulgated at the direction of Congress in §3161 of classified-information law). For what it’s worth, I think Smith is substantially correct about that (see, e.g., here and here).
Given Smith’s notorious aggressiveness (which the Supreme Court took note of in unanimously reversing a conviction he’d gotten in United States v. McDonnell), the special counsel’s response to Cannon was sharp and monitory. His prosecutors complied with Cannon’s directive that they propose jury instructions but not before taking her to task for what they described as her implicit assumption of erroneous legal standards. The government took pains to remind Cannon, a Trump appointee, that she had already been reversed twice by the Eleventh Circuit after making erroneous rulings (to Trump’s fleeting benefit) after the Mar-a-Lago search. And Smith’s prosecution team pushed the judge to render a rapid, explicit ruling on the jury instructions so Smith could appeal, if necessary, pretrial. Obviously, Smith is concerned that if Cannon delays in ruling until after the trial starts, and then rules against prosecutors with the result that Trump gets acquitted, the government would be unable to appeal (under double-jeopardy principles).
Judge Cannon fired back today. Smith will not be happy.
He won’t be altogether unhappy, either. In the throat-clearing portion of the judge’s succinct two-page order, she denied Trump’s PRA-based motion to dismiss the current (superseding) indictment. The judge correctly observed that the document-retention charges are sufficiently pled in that they convey the essential elements of the crime as set forth in the Espionage Act (§793(e) of the federal penal code). She also takes pains to note that the counts tracking the Espionage Act make no reference to the PRA, nor need they do so. The PRA, Cannon concludes, “does not provide a basis for a pre-trial basis to dismiss” (emphasis added).
Of course, that doesn’t answer the question of whether the PRA could provide a basis to dismiss after the trial commences, when Trump will posit it as his defense.
Which brings us to Cannon’s stinging rebuke of the special counsel:
Separately, to the extent the Special Counsel demands an anticipatory finalization of jury instructions prior to trial, prior to a charge conference, and prior to the presentation of trial defenses and evidence, the Court declines that demand as unprecedented and unjust. The Court’s Order soliciting preliminary draft instructions on certain counts should not be misconstrued as declaring a final definition on any essential element or asserted defense in this case. Nor should it be interpreted as anything other than what it was: a genuine attempt, in the context of the upcoming trial, to better understand the parties’ competing positions and the questions to be submitted to the jury in this complex case of first impression. As always, any party remains free to avail itself of whatever appellate options it sees fit to invoke, as permitted by law. [Citations omitted.]
Again, for what it’s worth, I believe Smith’s response was very persuasive on the legal merits. It was bracing in tone, though, and Cannon has taken offense.
The judge’s reference (twice) to Smith’s making “demands” is telling. Ordinarily, prosecutors make respectful requests of the tribunal. You have to be firm at times — prosecutors are executive-branch officials, and that often brings them into conflict with the independent judiciary — but you don’t make demands unless the judge is doing something lawless. And you never make demands when you are asking the judge to do something she doesn’t have to do — such as rule pretrial on something that needn’t be decided until the end of the trial, when jury instructions are finalized based on the way the case has played out.
Here, prosecutors were understandably alarmed by Cannon’s order laying out the two scenarios. As even Smith acknowledged, however, she hasn’t ruled yet. The two scenarios are different enough from each other to indicate that the judge is still trying to decide not only what the law is in this novel prosecution, but what factual matters have to be established before such laws as the PRA might be relevant.
For example, Smith strongly argues that there is no evidence that Trump ever made a designation that the intelligence documents in his possession were private records, rather than presidential or agency records. Prosecutors, then, ought to take comfort in Cannon’s explanation that she is not going to make a final decision until she hears the evidence; that suggests she is open to being convinced that Trump has no PRA defense.
What Smith can’t take comfort in is a judicial rebuke that his “demand” is “unprecedented and unjust.” The judge obviously feels she has been insulted. That’s not the way to go about convincing her. Not every case for the Biden Justice Department is a home game in Washington, D.C. Sometimes you have to go on the road, where the surroundings aren’t as comfy, and play better.
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