Special Counsel Jack Smith is getting quite agitated by Judge Aileen Cannon, a Trump appointee.
It would now appear that Smith has just about reached his breaking point with Cannon after her guidelines for possible juror instructions.
Talking Points…
- Cannon guidelines for jury instruction
- Smith challenges judge
- Analysis
Last month, Judge Cannon told both parties in the Trump classified documents case that she wanted them to file their proposed jury instructions with the court by April 2. That order drew sharp criticism from the media and Special Counsel Jack Smith.
Cannon offered up two different scenarios for the instruction. The first, stating the jury could review the president’s possession of documents and make a finding as to whether “it is personal or presidential using the definitions set forth in the Presidential Records Act.”
The second scenario she put forth stated that the president “has sole authority under the PRA to categorize records as personal or presidential during his/her presidency. Neither a court nor a jury is permitted to make or review such a categorization decision.”
Cannon was shredded by legal experts after issuing the order, with most that I read believing that she had set up the rules so that it would be impossible for Smith to get a guilty verdict. When Smith filed, he tore into Cannon on the process on this subject.
Smith went after Cannon right out of the gate, calling her request a “fundamentally flawed legal premise.” He added that adding jury instructions per her guidelines would “distort the trial.” Smith stated:
“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.”
The second scenario is the aspect of the order by Judge Cannon that concerns Smith the most, as he added that instructions based on that premise “would amount to nothing more than a recitation of Trump’s PRA defense as presented in his motion to dismiss and would result in directing a verdict against the Government.”
As Trump has done in other cases, he filed to have the case dismissed, which Cannon has not seemed inclined to do at this point. Smith tried to nudge her further in that direction, responding to the motion to dismiss the case, stating:
“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.”
Of all the indictments that Trump is facing, I have always believed that the cases being brought by Special Counsel Jack Smith had the most teeth, but Cannon has made this far less challenging with her jury instructions. If Trump can beat this case, the only other case that really concerns me is the January 6 case, but no trial date has been set because the court is waiting on the Supreme Court decision regarding presidential immunity.
