By defusing a looming confrontation with prosecutors, Cannon’s ruling may clear a path for her to decide a host of other unresolved pretrial issues, including the most basic question of when the trial will be held. The dispute over the possible relevance of the PRA to this case had led some legal experts to worry that there was little chance the case would go to trial this year.
Cannon’s decision comes three weeks after she held a hearing on Trump’s PRA motion, and two days after special counsel Jack Smith blasted the rationale behind the judge’s demand for prospective jury instructions that seemed to largely adopt Trump’s interpretation of the act.
Smith said in a court filing that Cannon was pursuing a “wrong” legal premise about the PRA and urged her to rule quickly on the issue so that if she ruled against him, he could appeal.
Cannon’s focus on jury instructions at this stage of the process flummoxed legal experts — both because it misapplied the law and because judges typically first resolve a host of more pressing questions about the beginning of the trial, rather than addressing the wording of jury instructions that come at the end.
Even as she ruled against Trump’s motion, Cannon’s three-page order also revealed her displeasure over Smith’s characterization of her order, suggesting this may not be the last such battle in the historic prosecution of a former president and the presumptive GOP presidential candidate.
Cannon wrote that “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.”
She said her request for the proposed jury instructions “should not be misconstrued as declaring a final definition on any essential element or asserted defense in this case.”
Instead, 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,” the order said.
Cannon did not indicate whether she believed the PRA could be a permissible defense for Trump to use later, leaving open the possibility that she or the former president could revive the issue during a trial.
Trump was indicted on 32 counts of violating the Espionage Act, each for a specific classified document that he is alleged to have illegally retained at Mar-a-Lago, his Florida home and private club, after his presidency ended. He has pleaded not guilty to those charges as well as eight additional counts of obstructing government efforts to retrieve the sensitive papers.
Trump’s lawyers argue that their client had the authority as president under the PRA to declare even highly classified documents to be his personal records and property.
Cannon said in her ruling that she rejected Trump’s request in part because the wording of the indictment is not based on the PRA. The indictment “specifies the nature of the accusations against Defendant Trump in a lengthy speaking indictment with embedded excerpts from investigative interviews, photographs, and other content,” she wrote.
In seeking the proposed jury instructions from prosecutors and defense lawyers, Cannon outlined two scenarios — both of which misstated what the PRA does, legal experts have said.
In one scenario, Cannon sought instructions that assume the PRA allows presidents to designate any documents as personal at the end of a presidency, which is what Trump’s legal team has argued he had the authority to do. She also told them to write jury instructions for a second scenario in which the jury has to determine which of the documents Trump is accused of illegally retaining are personal and which are presidential.
Smith responded in writing this week that Cannon’s instruction was based on a “fundamentally flawed legal premise” that would “distort the trial.” The filing made clear that the special counsel was willing to risk a direct confrontation with the judge because he believed Cannon’s approach to the PRA issue could pose a significant danger to his case.
Trump’s team said in its own filing that Cannon’s assignment was consistent with the former president’s position that the “prosecution is based on official acts” he took while in the White House — not illegal retention of materials.
Before Cannon’s ruling Thursday, Trump — whose strategy in fighting four criminal indictments has largely centered around attacking the legal system — came to the judge’s defense on social media.
He said Smith “should be sanctioned or censured for the way he is attacking a highly respected Judge, Aileen Cannon, who is presiding over his FAKE Documents Hoax case in Florida. He is a lowlife who is nasty, rude, and condescending, and obviously trying to ‘play the ref.’”
Robert Mintz, a former federal prosecutor, said that given the stakes of the case, Trump’s comments were not surprising but did carry risks.
“What is surprising is just how quickly the judge herself has become the central focus of this case,” Mintz said. “Turning the trial into a referendum on the judge may be effective from a public relations standpoint, but as a legal matter, it runs the risk of further politicizing the case and creating even more legal issues that could later backfire on the defense.”
Cannon, a Trump nominee who has been on the bench since late 2020, has been spared the attacks that Trump has thrown at the judges that are presiding over two of his other criminal cases: a federal election interference case brought in D.C. as well as a state trial related to alleged falsification of business records linked to a hush money payment that is slated to begin April 15 in Manhattan.
