U.S. District Judge Aileen Cannon is at it again.
Her latest weird move in Donald Trump’s classified documents case involves jury instructions. That may sound like a mundane subject but it’s quite important, because these instructions are what a jury will use to consider whether special counsel Jack Smith has proved his case beyond a reasonable doubt. (That is, if the Trump-appointed judge ever sets a trial date and a trial actually happens.)
The problem is that Cannon is apparently contemplating instructions that could effectively win Trump’s case for him, regardless of how strong the evidence against him is. To understand why, recall that the judge’s latest move comes against the backdrop of Trump’s claim that, under the Presidential Records Act, he could have deemed whatever sensitive government records he wanted to as “personal” and then taken them with him from the White House, precluding the government from prosecuting him over the retention. It’s a nonsensical position that Cannon could have rejected outright, but she chose to hold a hearing on it last week.
And now, in an order Monday, she told the parties to submit proposed jury instructions related to the charges alleging that Trump unlawfully retained national defense information. (The order doesn’t address the obstruction-related counts.) The Presidential Records Act shouldn’t factor into determining whether Trump’s conduct was criminal, but Cannon’s order nonetheless laid out two “competing scenarios” for the prosecution and the defense as they fashion their proposals. The first one is:
In a prosecution of a former president for allegedly retaining documents in violation of 18 U.S.C. § 793(e), a jury is permitted to examine a record retained by a former president in his/her personal possession at the end of his/her presidency and make a factual finding as to whether the government has proven beyond a reasonable doubt that it is personal or presidential using the definitions…
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