Cannon tells lawyers to weigh if Trump conduct can't be reviewed by courts

[mahatmakanejeeves]

Last edited Tue Mar 19, 2024, 04:18 AM - Edit history (1)

Source: Washington Post

THE TRUMP CASES
Cannon tells lawyers to weigh if Trump conduct can't be reviewed by courts

In classified documents case, legal arguments over jury instructions seem to take precedence over numerous other pretrial issues

By Devlin Barrett
March 18, 2024 at 9:07 p.m. EDT



In this image from video provided by the U.S. Senate, Aileen M. Cannon speaks remotely during her Senate Judiciary Committee nomination hearing to be U.S. District Court for the Southern District of Florida on July 29, 2020, in Washington. (U.S. Senate via AP)

The judge overseeing Donald Trump's classified-documents case issued an unusual order late Monday regarding jury instructions at the end of the trial -- even though she has not yet ruled on when the trial will be held, or a host of other issues. ... U.S. District Court Judge Aileen M. Cannon instructed lawyers to file proposed jury instructions by April 2 on two topics that are related to defense motions to have the indictment dismissed outright.

Cannon, a relatively inexperienced judge who was nominated by Trump and has been on the bench since late 2020, listened to arguments about the two defense motions last week. ... In that hearing, she sounded skeptical that Trump's attack on the Espionage Act, or his embrace of the Presidential Records Act, were strong enough to save the former president and likely 2024 Republican White House nominee from a criminal trial. At the same time, she suggested that aspects of Trump's arguments might be valid enough to come into play during jury instructions.

Juries are instructed on how to weigh the evidence just before they begin deliberating, so Cannon's focus on this topic suggests she is not only thinking ahead to a trial of the former president, but already zeroing in on the end, rather than the beginning, of such a proceeding.

Her two-page order, however, also suggests an openness to some of the defense's claims that the Presidential Records Act allows Trump or other presidents to declare highly classified documents to be their own personal property. National security law experts say that is not what the law says, or how it has been interpreted over decades by the courts, particularly given the other laws that govern national security secrets.

{snip}

By Devlin Barrett
Devlin Barrett writes about the FBI and the Justice Department, and is the author of "October Surprise: How the FBI Tried to Save Itself and Crashed an Election." He was part of reporting teams that won Pulitzer Prizes in 2018 and 2022. In 2017 he was a co-finalist for the Pulitzer for Feature Writing and the Pulitzer for International Reporting. Twitter https://twitter.com/DevlinBarrett

Read more: https://www.washingtonpost.com/national-security/2024/03/18/trump-judge-cannon-jury-instructions-pra/

---

Judge in classified documents case grapples with how Trump's personal records claim could be explained to a jury

https://amp.cnn.com/cnn/2024/03/18/politics/classified-documents-case-judge-presidential-records-act

By Hannah Rabinowitz and Katelyn Polantz, CNN
Published 12:49 AM EDT, Tue March 19, 2024


US Senate/AP

Aileen Cannon speaks remotely during a Senate Judiciary Committee oversight nomination hearing to be a judge in the US District Court for the Southern District of Florida on July 29, 2020.

(CNN) -- 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.

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.”

{snip}

[elleng]

1. OMG!!!

'In the first scenario, Cannon said, the jury would be allowed to review a former president’s possession of a record and make a factual finding whether “it is personal or presidential using the definitions set forth in the Presidential Records Act,” also known as the PRA.

Confusingly, she added in a footnote that any “separation of powers or immunity concerns shall be included in this discussion if relevant.” Immunity is a topic for judges to decide, not juries, so it was not immediately clear what that language in Cannon’s order meant.

The second scenario Cannon describes is one in which a president “has sole authority under the PRA to categorize records as personal or presidential during his/her presidency. Neither a court nor a jury is permitted to make or review such a categorization decision.”

That second hypothetical would appear to be one in which Trump seemingly could not be convicted under almost any set of facts of improperly possessing classified documents. It was not immediately clear how Cannon envisions a trial potentially based on that premise.'

[Silver Gaia]

2. She needs to go. NOW.

She has no idea what she's doing and that's dangerous.

[elleng]

3. Yes, and Yes but she's not gonna go now, or any time in the foreseeable future.

[Silver Gaia]

4. Yes, and that is maddening.

[elleng]

5. and, even worse, according at least to some 'pundits,'

she thinks letting tmp go lightly will result in him nominating her for a seat on the Supreme Court IF he's elected and Thomas decides to retire!

With that, I'll try to sleep.

[calimary]

13. I can't help but suspect that, too.

That.

That EXACTLY.

Because the Orange Turd might not want to bother with elevating her to the Appeals Court. He’d probably just send her straight to the highest level. Because. Because he could, which is yet another in a truckload of reasons why he should NEVER see the inside of the Oval Office again!

[rampartc]

9. she knows exactly what she is doing

she is helping s criminal run out the clock to evade justice, and will be paid with a job if it works

[BumRushDaShow]

6. "a president "has sole authority under the PRA to categorize records as personal or presidential ."

But they DON'T have "sole authority". The types of material that are "personal" vs "government-related" are specified here - https://www.archives.gov/about/laws/presidential-records.html

[GB_RN]

11. Exactly.

The nuclear documents he had, by statute, can only be declassified by agreement between the DOE and DOD, at least I think that’s it. I know for sure that the DOE has to sign off on any declassification.

[The_REAL_Ecumenist]

7. Where's she get her J.D?

Walmart?

[3Hotdogs]

8. No. Sears and Roebuck.

But the store in my area is closed down, so I can't even sue them.

[CousinIT]

10. I think DoJ should step in and insist that because this deals w/ ntl security....

...this judge needs to be removed from this case. We can NOT allow a former POTUS to hoard classified documents and then refuse to return them when they are found to be missing or found among the ex-POTUS's belongings. (hoarding and "refusing to return them" are the key words here). THAT is a crime and any judge needs to focus on THAT.

Or, the 11th circuit needs to step in. If she wants to be a Trump defense attorney let her step down as a judge but she should NOT be allowed to do that from the damn bench!

[intheflow]

12. So having read a lot this morning about this,

I like the take that Smith should refuse to engage with either of these scenarios because both violate existing law. But the thing that jumps out at me, as a non-lawyer, is: is Cannon suggesting a scenario in which a jury would be asked to review a classified document to determine if it was able to be declassified by Trump just because he said it was his? Like, “Hey, Jury. Take a look at this intelligence report on ISIS, which the government classified because if it got out what we know about their operations, it would endanger national and international security. Y’all can keep a secret, right?”

[republianmushroom]

14. This is B.S. from the loose cannon.