I will have a lot more to say in the weekend column about Biden Justice Department special counsel Jack Smith’s dyspeptic response to Judge Aileen Cannon’s order – which I posted about on Tuesday – requiring prosecutors to respond with proposed jury instructions to two factual scenarios she posited. Both involved the 32 felony charges of unlawfully retaining national-defense intelligence in Smith’s Mar-a-Lago indictment against Donald Trump.
As I observed in the post, Smith had to be dumbfounded by Judge Cannon’s order because the two scenarios she laid out seemed to accept some or all of the former president’s Presidential Records Act (PRA) defense. Indeed, the second scenario appears to buy it wholesale — advising the parties to propose jury instructions on the assumptions that (a) a president is deemed to have designated documents as personal records simply by having caused them to be removed from government safekeeping, and (b) that a president’s decision to designate materials as personal records (which he can keep), rather than presidential records (government property that must be archived) is unreviewable by a court or jury. If that’s the law, Trump gets acquitted on the document-retention counts.
The first scenario is better for Smith in that it anticipates that the jury may review a presidential designation of personal (rather than presidential) records by applying the PRA (i.e., reading Congress’s definitions of personal and presidential records). Nevertheless, although Trump could (and probably would) be convicted in this scenario, Smith objects to it because he believes the PRA is irrelevant to the case — the question of whether Trump was in unauthorized possession of the documents is controlled by the Espionage Act’s plain terms and the executive order that governs handling of classified documents (EO 13256, promulgated at the direction of Congress in §3161 of classified-information law). For what it’s worth, I think Smith is substantially correct about that (see, e.g., here and here).
Given Smith’s notorious aggressiveness (which the Supreme Court took note of in unanimously reversing a conviction he’d gotten in United States v. McDonnell), the special counsel’s response to Cannon was sharp and monitory.
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Author: Ruth King
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