On Wednesday, March 20, 2024, The Washington Post reported that legal experts expressed concerns over an order issued by Judge Aileen M. Cannon in the ongoing case against former President Donald Trump for mishandling classified documents.
Judge Cannon, who was nominated by Trump and has been overseeing the case since late 2020, instructed prosecutors and Trump’s defense lawyers last week to submit proposed jury instructions based on two scenarios that misstate the facts and laws around the case. She gave both sides two weeks to draft instructions around competing interpretations of the Presidential Records Act (PRA), which deals with the appropriate handling of records from presidential administrations.
However, several legal experts said Judge Cannon’s order was “very troubling” and “baffling.” Jeremy Fogel, who served as a federal judge in California for over 30 years and now runs the Berkeley Judicial Institute, said he had never seen an order like this in his three decades as a trial judge. Former federal judge Nancy Gertner of Massachusetts argued the order gives “credence to arguments that are on their face absurd.”
Barbara McQuade, a law professor at the University of Michigan and former US Attorney, said reaching jury instructions at this early stage is “premature and baffling.” She noted the PRA is “just not relevant here in any way” and “would create confusion for the jury.”
Former National Archives director Jason Baron said Judge Cannon appears to conflate the PRA with the Espionage Act under which Trump is charged. He argued there is no ambiguity that the documents are presidential records and the president cannot claim them as personal belongings or use the PRA to avoid Espionage Act prosecution.
Gertner suggested special counsel Jack Smith should try to recuse Judge Cannon from the case, citing her rulings that “make little sense” and “delays…so far out of the mainstream that they clearly suggest bias.” However, other lawyers noted the high bar for recusal and that an effort to remove Judge Cannon likely would not succeed.
Trump’s lawyers have claimed the PRA allows him to keep classified documents as personal records after leaving office. But an appeals court previously ruled in September 2022 that Trump has no possessory interest in the records seized from his Mar-a-Lago home. Prosecutors want a July 2024 trial, while Trump’s team is pushing for after the November election or August at the earliest.
Fogel said Judge Cannon may be putting “the cart before the horse” by addressing jury instructions before legal issues. However, some said it is not unusual for judges to present difficulties for one side, and prosecutors should push ahead confident the evidence will convince a jury, as occurred in Robert Mueller’s prosecution of Paul Manafort despite challenges from the presiding judge.
Source: The Washington Post
