Federal Judge Aileen Cannon issued an order Monday for lawyers to submit instructions for a trial jury in former President Donald Trump’s classified documents case – signaling that the debate over whether Trump had the authority to keep documents from his White House could remain a central issue of the case, which could help him at trial.
But – to the surprise and confusion of several legal experts on Monday – Cannon asked the attorneys in the case to consider how to incorporate into the trial the Presidential Records Act.
The request is an unusual one that leads both sides into hypothetical, untrodden territory.
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In Fort Pierce, Fla. Cannon asked both the Justice Department and defense team to contemplate how a jury could be told to weigh the criminal law around national security records if Trump could say the PRA gave him authority to keep documents he chose.
The Justice Department maintains his charges have nothing to do with the PRA and are about what happened after the presidency: how classified records about US and foreign military secrets were kept without federal protection at a private beach club and allegedly moved around so government officials wouldn’t find them.
Cannon’s order on Monday could also be viewed as a logic exercise that's hard to parse – even for experienced lawyers trying to determine where she is leading the attorneys involved.
"I don’t get what she’s doing with this. I don't understand where she is going with this order," Brad Moss, a national security lawyer, told CNN on Monday. "It’s a bizarrely written set of questions that doesn’t lend itself to an easily understandable set of answers."
Moss added it’s possible Cannon wants to push some questions about the documents Trump kept to the jury, as she’s held back on deciding many legal disputes in Trump’s landmark case.
Cannon’s order asked both the special counsel’s office and Trump’s attorneys to write jury instructions defining terms of the Espionage Act, under which the former President is charged for mishandling 32 classified records. Part of the law under which Trump is charged criminalizes a person having unauthorized possession of records related to national defense.
Still, the judge asked prosecutors and defense lawyers to write versions of their proposed jury instructions that consider the PRA by April 2. “Engage with the following competing scenarios and offer alternative draft text that assumes each scenario to be a correct formulation of the law to be issued to a jury,” Cannon wrote on Monday.
The first version would instruct a jury to decide whether prosecutors proved that Trump did not have the authorization to keep classified documents found on his property, even if they were personal or presidential records. The second scenario would assume that as president, Trump had complete authority to take records he wanted from the White House under the PRA.
Moss said the second scenario appears to be the equivalent of a judge in a murder case asking how to advise a jury to weigh the facts, "if the murder had taken place during The Purge" – referencing a movie where all crime is legal for a set period of time.
The exercise is a continuation of a hearing last week, during which Trump’s attorneys claimed that he had unlimited power to decide which documents needed to be returned to the National Archives under the PRA.
Trump is asking Cannon to dismiss the charges against him because of the PRA.
Though Cannon appeared skeptical during the hearing that the charges against the former president should be dismissed because of the PRA, she said that the arguments could be a “forceful” trial defense.
