In his brief, Jack Smith tells Judge Aileen "Loose" Cannon she's incompetent and appeals are coming
INTRODUCTION
In the slow-moving and ill-managed classified documents case, Judge Aileen Canon has shown herself to be bad at her job and possibly stacking the deck for Trump — the man who gave this inept jurist a lifetime position with an annual salary of $243,300. Cannon is not a complete moron, however. She has cannily made it difficult for Special Counsel Jack Smith to appeal to the 11th circuit.
Now, she has potentially misplayed her hand. She asked Smith and Trump’s lawyers to propose jury instructions based on two scenarios involving competing interpretations of the Presidential Records Act (PRA).
This was unusual timing. Legal experts noted that it is rare for a judge to request such jury instructions long before a trial date that hasn’t even been set and before ruling on the laws relevant to the case.
Worse, it gave Trump a critical assist. The applicable law in the case is the Espionage Act. Cannon’s introduction of the PRA would be a gift to the document thief. It gives jurors the idea that the classified documents Trump held onto might somehow be his personal records. A framing that many experts say is nonsensical and seriously jeopardizes the case.
SMITH’S BRIEF
Smith replied with a brief that scathed Cannon. Six times Smith called her legal reasoning wrong. He asked her to get it right ASAP. And most damningly, he threatened an appeal. Smith needs something, as federal judges have wide latitude to set the calendar. And if Cannon moved slower, she would be traveling backward.
Let us have a look at his reasoning. The brief starts by outlining Cannon’s ask for jury instructions (I have omitted case references as this piece is for nonlawyers. Click HERE for the original wording)
GOVERNMENT’S RESPONSE TO ORDER REQUIRING PRELIMINARY PROPOSED JURY INSTRUCTIONS AND VERDICT FORMS ON COUNTS 1-32
The Court has issued an order directing the parties to file preliminary proposed jury instructions and verdict forms for Counts 1-32 of the Superseding Indictment, with a specific requirement that the parties “engage with [two] competing scenarios and offer alternative draft text that assumes each scenario to be a correct formulation of the law to be issued to the jury.”
He then calls Cannon’s request baseless.
Both scenarios rest on an unstated and fundamentally flawed legal premise —namely, that the Presidential Records Act (“PRA”), and in particular its distinction between “personal” and “Presidential” records determines whether a former President is “authorized,” under the Espionage Act to possess highly classified documents and store them in an unsecure facility, despite contrary rules in Executive Order 13526, which governs the possession and storage of classified information.
Smith then tells Cannon she screwed the pooch and is thumbing the scales of justice.
That legal premise is wrong, and a jury instruction for Section 793 that reflects that premise would distort the trial.
He elaborates by saying that Cannon’s embrace of the PRA is not only wrong for the jury to hear in their instructions. But it is also irrelevant to the whole trial.
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. Indeed, based on the current record, the PRA should not play any role at trial at all.
He then asks Cannon, if she obstinately insists on being wrong, to deal with the matter expeditiously. Although some may say that is the triumph of hope over experience.
Moreover, it is vitally important that the Court promptly decide whether the unstated legal premise underlying the recent order does, in the Court’s view, represent “a correct formulation of the law.”
Adding, “If the Court wrongly concludes that it does, and that it intends to include the PRA in the jury instructions regarding what is authorized under Section 793, it must inform the parties of that decision well in advance of trial.
Then Smith levels his big gun and drops the “A-word.”
The Government must have the opportunity to consider appellate review well before jeopardy attaches.
Smith then visits the cases, executive orders, and legal authorities that give weight to his opinions.
Next, the ever-helpful Smith tells Cannon he has given her what she ought to have if she manages to get the law right.
As instructed by the Court, the Government below provides a clear and well-supported jury instruction. The proposed instruction correctly instructs the jury that the element of unauthorized possession depends on the plain language of the statute, Executive Order 13526, and the executive order’s implementing regulations, and it makes no mention of purported designations under the PRA.
However, the Special Counsel shows he is obedient to the Judge’s instructions, no matter how bullshitty.
Government also provides proposed jury instructions that incorporate the inaccurate legal premises reflected in the Court’s order under Scenario (a) and Scenario (b).
Next, Smith points out that not only is Trump’s PRA strategy wrong. He did not even bring it up until a year after he purloined the documents. Further, he makes this tardy claim that the documents were personal records despite doing nothing — while he had the authority — to designate any records as personal.
Furthermore, even though resolution of the threshold legal question is purely a matter of law, the Court should be aware at the outset that Trump’s entire effort to rely on the PRA is not based on any facts. It is a post hoc justification that was concocted more than a year after he left the White House, and his invocation in this Court of the PRA is not grounded in any decision he actually made during his presidency to designate as personal any of the records charged in the Superseding Indictment.
Then, just in case Cannon has had difficulty following along, he restates the matter.
Importantly, Trump has never represented to this Court that he in fact designated the classified documents as personal. He made no such claim in his motion to dismiss, in his reply, or at the hearing on March 14, 2024, despite every opportunity and every incentive to do so. As discussed below, the reason is simple: he never did so.
Smith finished this section by explaining what Trump did do. And pointing out that Trump’s “legal presumption” was magical thinking.
Instead, he has attempted to fashion out of whole cloth a legal presumption that would operate untethered to any facts—without regard to his actual decisions, his actual intent, the unambiguous definition of what constitutes personal records under the PRA, or the plainly non-personal content of the highly classified documents that he retained.
There is no basis in law or fact for that legal presumption, and the Court should reject Trump’s effort to invent one as a vehicle to inject the PRA into this case.
BACKGROUND
In this section, Smith expands on what he has already said. And adds details to support his contention. This is an essay, not a book. So, I will not go into detail. But I will offer some quotes to give the reader a flavor of the tenor of Smith’s argument.
there is no colorable argument that any of the documents charged in the Superseding Indictment is a personal record under the PRA
those contentions are both meritless and fatally undermined by Trump’s concession that the Department of Justice may seek to recover such documents in a civil suit
Trump has never suggested that he in fact designated the documents at issue as personal,
Smith then goes into even more detail (which is how legal briefs work). He will leave no stone unturned as he again points out that Trump’s “personal records” defense is a fantasy unsupported by any deed.
A. Trump Did Not Designate the Documents as Personal While in Office
During its exhaustive investigation, the Government interviewed Trump’s own PRA representatives and numerous high-ranking officials from the White House—Chiefs of Staff, White House Counsel and senior members of the White House Counsel’s Office, a National Security Advisor, and senior members of the National Security Council.
Not a single one had heard Trump say that he was designating records as personal or that, at the time he caused the transfer of boxes to Mar-a-Lago, he believed that his removal of records amounted to designating them as personal under the PRA.
To the contrary, every witness who was asked this question had never heard such a thing.
Smith then identifies when Trump hit on the expedient strategy of declaring the stolen documents as “personal.”
B. The Notion that Trump Might Have Designated the Documents as Personal Was First Invented in February 2022
Then, Smith identifies the President of Judicial Watch (Tom Fitton) as the cause of Trump’s epiphany. He writes that the Washington Post had reported on February 7, 2022, that “in January, the NARA [National Archives and Records Administration] had “retrieved 15 boxes of documents and other items from former president Donald Trump’s Mar-a-Lago residence.”
In the article, a NARA spokesperson said, “The Presidential Records Act is critical to our democracy, in which the government is held accountable by the people.’”
This inspired Fitton, as Smith wrote, to post two tweets “explaining” the law and saying that a previous President had established a precedent for Trump’s actions.
Smith then points out that Fitton is not a lawyer — “the Judicial Watch president, who was not an attorney.” Nevertheless, this ignoramus (my word, not Smith’s) had a conversation with an unnamed Trump employee to explain that:
“Trump was being given bad advice, and that the records Trump possessed at Mar-a-Lago should have been characterized as personal.”
The brief states that another employee thought Fitton was blowing smoke
“The second employee advised the Judicial Watch president that they disagreed with the Judicial Watch president’s analysis: in Judicial Watch, former President Clinton had made the designation of certain records personal while President, whereas Trump had not done so. The second employee further informed Trump that the Judicial Watch president was wrong and explained why.
It seems likely this employee was a lawyer. Regardless, Trump did not listen. And proceeded to make shit up. Note: The passive voice (“I have been told”) allows the speaker to avoid mentioning who was doing the telling. Also, it is SOP to not enumerate legal rulings when there are none.
Nevertheless, on February 10, 2022, Trump released a statement claiming in part, “I have been told I was under no obligation to give the material based on various legal rulings that have been made over the years.”
Before this time, the second employee had never heard this theory from Trump.
Yet, despite playing this dubious get-out-of-jail-free card, Trump then forgot about it.
C. Trump and His Attorneys Nevertheless Continued to Acknowledge that the Documents Were Presidential, Not Personal, Records.
Smith elaborates.
Even after the February 2022 discussions with the Judicial Watch president, Trump and his attorneys continued to acknowledge that the classified records at issue in this case were presidential rather than personal.
Smith gives a for-instance.
For example, in May 2022, Trump’s former attorney accepted service of a grand jury subpoena requiring Trump’s post-presidency office to produce any documents with classification markings in its or the former President’s custody. Trump did not seek to quash the subpoena or argue in any way that he did not have to comply because he had designated any classified records as personal under the PRA.
Smith then enumerates what Trump did do — which is to act like a man who knows he is a crook.
Instead, he hid most of those documents from his lawyer; made false statements to mask his continued possession of them; and attempted to enlist his lawyer in concealing or destroying the classified records.
Just in case Cannon still has not grasped that Trump was not claiming a personal records defense Smith provides more of the same.
Then we get to DISCUSSION. Here Smith tells Cannon to do her job and gives her the answer to the question at hand.
The Court must decide whether the unstated legal premise embedded in the Court’s recent order represents “a correct formulation of the law,” that is, whether the PRA’s distinction between personal and presidential records determines whether possession is authorized or unauthorized. The answer to that question is plainly no.
He goes on to explain (again) why the answer is no. But if Cannon insists on sticking to her illegal jury instruction nonsense, he will humor her.
The two scenarios posited by the Court, on the other hand, rest on the incorrect premise that a former President is authorized to possess classified information—regardless of whether he has a security clearance or a need to know, and regardless of whether he complies with applicable safeguarding regulations, so long as it is contained within a personal record.
As a result, both of the Court’s scenarios are fundamentally flawed and any jury instructions that reflect those scenarios would be error.
Nevertheless, as directed by the Court, the Government below provides jury instructions for each of these two legally erroneous scenarios.
Smith then provides for “these two legally erroneous scenarios.” One under the heading:
Government’s Proposed Jury Instruction: The Jury Is Correctly Instructed that Unauthorized Possession Is Based on Executive Order 13526, Not on the PRA.
The other, under the heading:
The Jury Is Incorrectly Instructed that the Defendant Is Authorized to Possess Any Record that He Designated as Personal, and Is Further Incorrectly Instructed that, by Failing to Transfer the Charged Documents to NARA, the Defendant Made the Unreviewable Decision to Designate the Charged Documents as Personal
Needless to say, Smith's instructions to the jury explain all the ways Trump is not entitled to a “not guilty” verdict. I will not go into the details here. This piece is already long enough — perhaps in another one. However, I will highlight one passage to give the reader a sense of Smith’s low regard for Cannon’s request
Like Scenario (a), proposed Scenario (b) rests on the erroneous and unsupported legal proposition that the designation of records as either personal or presidential under the PRA has an impact on whether a person is authorized to possess classified documents under Section 793(e). It has no such impact. But Scenario (b) also incorporates additional layers of erroneous legal propositions at the core of Trump’s legally flawed and factually unsupported PRA defense.
Smith then wraps it up telling Cannon to get her finger out. And he uses the “A-word” again.
CONCLUSION
For the reasons set forth above and in the Government’s opposition to Trump’s motion to dismiss based upon the PRA, the Court should reject the legal premise that the PRA’s distinction between personal and presidential records has any bearing on the element of unauthorized possession under Section 793(e).
As such, it should deny Trump’s pending motion to dismiss and adopt preliminary jury instructions as proposed by the Government above. 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.
What will Cannon do? I have no idea. I imagine she would like to give Trump’s lawyers a chance to respond before some distant date. However, Smith has made it clear that she had better start doing her job correctly and quickly. Or he is going over her head while leaving shoe prints on her forehead.
As we all know, Trumpie is a grifter of the first order and his song and dance, ( and apparently Judge Cannon’s as well) isn’t going to deter Mr. Smith, and I’m thankful for that. Thank you Pitt