April 3 (UPI) — Special prosecutor Jack Smith says the judge in the classified documents case against Donald Trump has issued an order that would distort the trial.
Smith told U.S. District Judge Aileen Cannon in a court filing Tuesday that her order for the prosecution and defense to propose jury instructions is based on a “fundamentally flawed legal premise.”
The premise Smith is referring to is an interpretation of the Presidential Records Act argued by Trump’s defense. The former president’s attorneys argued that he had the authority to take and keep classified documents after he left the White House. Cannon ordered the prosecution and defense to offer proposals based on the concept that Trump’s argument is valid.
“That legal premise is wrong, and a jury instruction for Section 793 that reflects that premise would distort the trial,” Smith writes. “The PRA’s distinction between personal and presidential records has no bearing on whether a former president’s possession of documents containing national defense information is authorized under the Espionage Act, and the PRA should play no role in the jury instructions on the elements of Section 793.”
Smith argues that the Presidential Records Act does not apply because the charges against Trump relate to actions taken after he was president.
Smith also expresses concern that Cannon may wait to make a decision after jeopardy attaches. If she determines at that point that Trump is allowed to possess the documents in question, the case would end and the government would not have the ability to appeal. It would also not be allowed to try Trump again due to double jeopardy.
“Whatever the court decides, it must resolve these crucial threshold legal questions promptly,” Smith says. “The failure to do so would improperly jeopardize the government’s right to a fair trial and deprive it of its right to seek appellate review.”
Two scenarios are meant to be under consideration under Cannon’s order.
The first is that the Espionage Act allows a former president to possess any document that a jury determines is a personal record, as defined by the Presidential Records Act. Jurors would be instructed to make those determinations.
The second is that a president can remove any document from the White House when he leaves office, and that those records are his personal records. This would effectively end the prosecution if adopted. Smith says the prosecution should be entitled to a prompt review in the court of appeals in that case.
The filing reveals that Trump was contacted by Judicial Watch, a conservative nonprofit group. During conversations between Trump, his attorneys and the group’s president as late as February 2022, Trump’s team acknowledged that the documents in question were presidential, not personal.
Trump faces 32 charges for mishandling classified documents, including national security secrets.