The judge presiding over the trial concerning Donald Trump’s handling of classified documents has drawn criticism for her recent directive to attorneys representing both sides. Judge Aileen Cannon has requested that they provide potential jury instructions pertaining to the former president’s motions seeking dismissal of the case. One legal expert went as far as labeling one aspect of this request as “legally insane.”
In a brief two-page order issued on Monday, Judge Cannon instructed Trump’s legal team and the office of Special Counsel Jack Smith to submit two contrasting interpretations of the Presidential Records Act (PRA). These interpretations are meant to serve as the “correct formulation of the law” to be presented to the jury prior to its deliberations.
Trump is seeking to have the federal case against him dismissed, arguing that the PRA empowered him to consider sensitive materials taken from the White House in January 2021 as his personal property, thus shielding him from charges of unauthorized possession.
Aileen Cannon (Credits: The New York Times)
Judge Cannon, who was nominated to her position by Trump and has been the subject of frequent criticism for her handling of the proceedings, had previously expressed doubt during a motion-to-dismiss hearing about the validity of this argument as grounds for dismissing the case outright before it goes to trial.
At the same hearing, she rejected another motion to dismiss from Trump related to the language of the Espionage Act but indicated that these arguments could be revisited in the context of jury instruction briefing.
Several legal experts have condemned Judge Cannon’s directive, particularly for soliciting arguments from both sides that could be presented to the jury before the trial has even established a start date for Trump to face the 40 federal charges against him.
One of the scenarios requested by Judge Cannon would require both parties to address whether records retained by a former president after leaving office constitute personal property and whether the government has sufficiently proven that status under the PRA. The second scenario focuses on arguments asserting a president’s sole authority under the PRA to classify records during their tenure.
This second scenario aligns closely with Trump’s defense, which contends that his actions in retaining classified materials at his Mar-a-Lago resort in August 2022 were permissible under the PRA.
Bradley P. Moss, a national security specialist lawyer, criticized this second scenario as “legally insane,” suggesting that if such a stance were accepted, it would expedite Trump’s motion to dismiss based on PRA grounds, subsequently prompting a swift reversal in the 11th Circuit Court.
Trump (Credits: Vanity Fair)
George Conway, a lawyer and vocal Trump critic, characterized Judge Cannon’s directive as highly unusual, ranking it as the most bizarre order he had encountered in his legal career.
Norm Eisen, who served as special counsel to the House Judiciary Committee during Trump’s first impeachment, characterized Judge Cannon’s approach as an attempt to tilt the case in Trump’s favor, expressing concern that she seemed to be seeking assistance from the parties involved in deciding fundamental legal matters that are typically the purview of the judge.
Under the Presidential Records Act, enacted in response to the Watergate scandal, all presidential documents are to be transferred to the National Archives and Records Administration upon the president’s departure from office, as they are considered federal government property. If a former president wishes to make their official documents publicly available, they must seek permission from the National Archives, with the materials remaining under its custody.
Trump stands accused of unlawfully retaining classified documents, storing them at his Mar-a-Lago resort, and impeding federal officials’ efforts to retrieve them.
Although the trial is scheduled to commence on May 20, Judge Cannon is expected to postpone the proceedings pending a future decision.
