Jack Smith Lays The Groundwork To Get Aileen Cannon Kicked Off Classified Docs Case

In a late-night filing, Special Counsel Jack Smith made it clear to Judge Aileen Cannon that if she pushes any of Trump's defenses in the jury instructions, he will appeal.

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Jack Smith’s Message For Aileen Cannon In New Court Filing

Unabashed Trump supporter and appointee to the federal bench, Judge Aileen Cannon has been a problem in the Trump classified documents case almost from day one.

There was Cannon needlessly wasting time for Trump by appointing a special master that was later overturned on appeal. Cannon is weighing giving Trump information on the government’s witnesses, which, given the ex-president’s history of threats and intimidation is like handing matches to an arsonist.

The latest dispute involves jury instructions as Trump is weighing allowing the jury to use Trump’s inaccurate interpretation of the Presidential Records Act in their deliberations.

The Special Counsel’s office responded to Cannon in a new court filing:

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.” ECF No. 407 at 2. 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. The Government must have the opportunity to consider appellate review well before jeopardy attaches. See, e.g., United States v. Wexler, 31 F.3d 117, 129 (3d Cir. 1994) (“[T]he adoption of a clearly erroneous jury instruction that entails a high probability of failure of a prosecution—a failure the government could not then seek to remedy by appeal or otherwise—constitutes the kind of extraordinary situation in which we are empowered to issue the writ of mandamus.”); In re United States, 397 F.3d 274, 283 (5th Cir. 2005) (courts “have permitted the Government to obtain writs of mandamus when a proposed criminal jury instruction clearly violated the law, risked prejudicing the Government at trial with jeopardy attached, and provided the Government no other avenue of appeal”); United States v.Pabon-Cruz, 391 F.3d 86, 91-92 (2d Cir. 2004) (similar).

If, for example, the Court concludes—as posited in Scenario (a) in the Court’s order—that under the Espionage Act a former President is authorized to possess any document that the jury determines qualifies as a personal record as defined by the PRA, that would wrongly present to the jury a factual determination that should have no legal consequence under the elements of Section 793.

Likewise, if the Court concludes—as posited in Scenario (b)—that a President has carte blanche to remove any document from the White House at the end of his presidency; that any document so removed must be treated as a personal record under the PRA as an unreviewable matter of law; and that, also as a matter of law, a former President is forever authorized to possess such a document regardless of how highly classified it may be and how it is stored, that would constitute a “clearly erroneous jury instruction that entails a high probability of failure of a prosecution,” Wexler, 31 F.3d at 129, and the Government must be provided with an opportunity to seek prompt appellate review.