In a new filing, federal Judge Aileen Cannon (who’s handling former President Donald Trump’s criminal case related to the handling of sensitive government documents) made a point of admitting to possibilities that her decisions become the subject of appeals to higher levels of the judiciary.
She was responding specifically to outrage from Special Counsel Jack Smith at her keeping — for now — an argument somewhat alive in the context of jury instructions that would let the federal Presidential Records Act (PRA) help Trump out legally.
Specifically, she earlier requested hypothetical jury instructions for the eventual trial reflecting a pair of (related) legal interpretations that would prioritize Trump potentially designating certain records as “personal” (in contrast to the “presidential” records covered by that piece of federal law). Federal prosecutors say that PRA compliance isn’t even the main question here, instead pointing to the federal Espionage Act, under which large swathes of Trump’s underlying criminal allegations were brought.
“Separately, 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,” Cannon wrote, later adding: “As always, any party remains free to avail itself of whatever appellate options it sees fit to invoke, as permitted by law.” She argued in the portion between those that her requests for hypothetical jury instructions should not be construed to represent her finalizing the legal interpretations that will actually be in use at those later stages, as trial approaches.
But one of the hypothetical interpretations at issue here is particularly extreme. It’s the idea “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,” as prosecutors summarized in their own outrage at the judge even somewhat advancing this.
