U.S. District Court Judge Aileen Cannon, who is overseeing Donald Trump’s confidential documents case in Florida, has issued an unusual order regarding jury instructions that has left legal observers baffled.
On Monday, Judge Cannon ordered attorneys for both sides to submit their proposed jury instructions by Tuesday, April 2, on two topics related to two defense motions seeking to dismiss the charges against the former president outright.
The judge heard arguments to dismiss the case last week during a hearing in Fort Pierce, Florida.
During that hearing, Judge Cannon appeared skeptical of Trump’s criticism of the Espionage Act his embrace of the Presidential Records Act (PRA) were strong enough arguments to dismiss the charges against him.
She quickly dismissed the idea that there were 32 charges against the former president under the spy era are unconstitutionally ‘vague’ – rejects the first motion on these grounds.
However, she has yet to rule on the motion to dismiss based on the argument that Mr. Trump’s actions are covered by the PRA.
While express skepticism about both arguments, she also suggested that some aspects might be valid enough to be considered by a jury at trial.
Now Monday’s order regarding those instructions seems to suggest that she is not only thinking ahead to a trial, but also anticipating its conclusion in this matter.
Judge Cannon wants both the defense and prosecution to submit proposed jury instructions and verdict forms regarding the “essential elements” of the Espionage Act.
In the two-page order, she also suggested a degree of sympathy for some of Team Trump’s claims regarding the PRA allowing commanders in chief to declare highly classified documents as personal property – despite national security law experts saying this hotly contested.
In the order, Judge Cannon asks prosecutors and defense attorneys to consider two hypothetical situations.
In the first case, the jury would be allowed to review the former president’s possession of classified documents and make a factual determination as to whether “it is personal or presidential, using the definitions set forth in the Presidential Records Act.”
Curiously, she then adds in a footnote that “any issue of separation of powers or issues of immunity, if relevant, will be included in this discussion” – despite the issue of immunity being a matter for judges, not juries, to decide.
Her second scenario describes one in which a president “under the PRA has the exclusive authority to categorize documents as personal or presidential during his/her presidency. Neither a court nor a jury may make or review such a categorization decision.”
That second possibility appears to be one in which Mr. Trump cannot be convicted of unlawful possession of classified documents on virtually any set of facts. This has left legal commentators completely baffled as this is exactly what Mr Trump is accused of.
In my decades of practicing law, this is the most bizarre order I have ever seen issued by a federal judge. What makes that all the more astonishing is that the second and third most bizarre orders I have ever seen in federal court were also issued by Judge Cannon in this case. https://t.co/iS609sxIQb
— George Conway (@gtconway3d) March 18, 2024
Legal commentator and MSNBC host Katie Phang noted how “woefully unclear” Judge Cannon’s language is and reflected: “The PRA is clear. Like the Espionage Act. I’m not sure why Cannon struggles with these concepts.
National Security Attorney Bradley Moss also posted on X Monday night: “This second scenario is legally insane. If that were the case, just grant Trump’s motion to dismiss on PRA grounds so that DOJ takes it to the 11th Circuit for a quick reversal.”
Longtime Trump foe George Conway was even more scathing: “In my decades of practicing law, this is the most bizarre order I have ever seen issued by a federal judge. What makes that all the more astonishing is that the second and third most bizarre orders I have ever seen in federal court were also issued by Judge Cannon in this case.”
He later wrote: “Okay, I’ve seen enough. Not only should Aileen Cannon not be on this case, but she should not be on the federal bench at all. This is completely crazy.”
There has been much consternation about Judge Cannon’s role in the case from the beginning as she was appointed by the former president.
Norm Eisen, a senior fellow at Brookings Governance who oversaw PRA issues in the White House for two years, noted that he noticed several things about Judge Cannon’s two options.
Referring to an op-ed he wrote for CNN in June 2023, Mr. Eisen says the former president’s claim that the PRA justifies his actions is flawed because it has nothing to do with where he was authorized to find the documents in the first place.
Mr. Eisen argues that while Mr. Trump’s legal team argues that under the PRA the former president can unilaterally decide what he can keep simply by saying it is personal, the statute in no way expands the definition to include sensitive classified documents – only purely private matters not related to the duties of the President.
During Thursday’s hearing, prosecutor Jay Bratt, part of special counsel Jack Smith’s team, argued that even if the former president could have considered the data personal, he simply would not have done so.
“But nowhere does the statute broaden the definition… to include our nation’s most sensitive secrets. Rather, personal documents are defined as “purely private” documents that “do not relate to or affect the performance of the … duties of the President.”” 5/x
— Norm Eisen (norm.eisen on Threads) (@NormEisen) March 18, 2024
He pointed to a transcript of a recorded conversation in which Trump discussed classified documents at his club in Bedminster, New Jersey.
“Not only is it premature, it never happened,” Bratt said. “He doesn’t say, ‘I can show you this because it’s personal.’ … In fact, he says the opposite.”
As for what this means for the case, Mr. Eisen wrote on
‘It’s clumsy and amateurish; she seems to know she is shaky and she asks the parties for help on threshold cases that would normally be sorted out by the judge.
“If she persists in this course, Special Prosecutor Jack Smith can and will go to the 11th Circuit. And while he’s there, this and several other recent (impending) blunders give him ammunition to reverse and remove her.
This is the kind of legal nonsense that could lead Jack Smith to seek Judge Cannon’s writ of mandamus, that is, to have the 11th Circuit Court of Appeals hear it and overturn her for the third time, which also proverbial three strikes and you’re out. https://t.co/dMjhf9bm6q
— Andrew Weissmann (weissmann11 on Threads)🌻 (@AWeissmann_) March 18, 2024
Trump faces a 40-count indictment for violating the Espionage Act, obstruction and illegally removing federal documents.
Trump is accused of illegally possessing classified documents at his Florida estate after leaving the White House in January 2021.
He is also accused of obstructing the U.S. government’s efforts to recover those documents after allegedly trying to hide boxes of classified documents following a grand jury subpoena ordering their return.
Trump aide Walt Nauta and Mar-a-Lago property manager Carlos de Oliveira were also charged in the case.
All three men have pleaded not guilty to the charges and all have taken steps to have the charges against them dropped.
Trump’s legal team’s proposals to dismiss the case add to a growing list of attempts to sidestep the 91 criminal charges against him in four separate criminal cases in four jurisdictions.