Justice Aileen Cannon? Steel yourself: It could happen

What is Donald Trump on trial for in Florida, anyway?  That is the question Special Counsel Jack Smith posed to Judge Aileen Cannon yesterday in his response to the proposed jury instructions she issued last month.  You remember that brilliant judicial side-shuffle don’t you?  Cannon accepted Donald Trump’s contention that the Presidential Records Act (PRA) entitles him to do anything he wants with any document that came out of his four years in office as president, and then she crafted two questions for the Special Counsel and Trump’s lawyers to answer:  Should we just take Trump at his word and let him go now, or should we figure out some rationale for doing it, and then let him go?

As he does practically every day, Trump took the very law he is charged with violating and said it doesn’t condemn him, it protects him.  He walked away from the White House with a truckload of presidential papers and said the Presidential Records Act protects his right to do just that.  It must have taken a herculean effort by Jack Smith not to file a legal response to Cannon containing the single word, huh?  Instead, Smith did his best to keep the case against Trump on track.  Trump is charged, you will recall, with stealing and mishandling more than 30 top secret documents, and then obstructing efforts to reclaim those documents for the government which owns them.

The point that the government has legal title to the product produced by a president while in office was written into law in the Presidential Records Act after Richard Nixon tried to declare that the conversations he secretly recorded in the Oval Office were his personal property.  The Congress passed the PRA three years later to say exactly the opposite, that all official documents resulting from the carrying out of presidential duties belong to the people of the United States, not to the man occupying the office of the president.  Presidents are allowed to keep private materials as their personal property.  If Trump received a note from Ted Nugent thanking him for his invitation to the White House, that would be a personal paper.  If a written record was created of a phone call by Trump to President Zelenskyy of Ukraine threatening to withhold a $400 million shipment of weapons unless Zelenskyy initiated an investigation of Joe Biden, that written record would be an official document, not a personal one.

Trump made the absurd claim that the folders of top-secret documents he took from the White House and stored at Mar a Lago in places like his personal office, a public restroom, and the stage in a ballroom rented out for public events, were his personal property.  Cannon asked attorneys for the prosecution and defense to assume that Trump’s claim that the PRA entitled him to possess the top-secret documents was correct, and craft jury instructions taking that assumption at face value.  Legal experts said the judge’s order was “unusual,” given the fact that she has so far not scheduled a trial, much less empaneled a jury the instructions would presumably be issued to.  Moreover, jury instructions are not formulated by judges until after a trial has been held and matters of law have been raised by the defense or prosecution that would need to be interpreted for the jury by the judge in the case.

Special Counsel Smith was blunt in his response to Judge Cannon: “That legal premise is wrong, and a jury instruction for Section 793 that reflects that premise would distort the trial. The PRA’s distinction between personal and presidential records has no bearing on whether a former President’s possession of documents containing national defense information is authorized under the Espionage Act, and the PRA should play no role in the jury instructions on the elements of Section 793. Indeed, based on the current record, the PRA should not play any role at trial at all.”

In other words, judge, your premise was wrong, and your request to formulate jury instructions was extraneous to the proceedings as they stand today.

It took Smith only a few more lines in his brief to tell the judge that he knows exactly what she did with her utterly bogus request for jury instructions.  Smith cited two Circuit Court decisions, one from the 3^rd Circuit and the other from the 5^th Circuit, involving cases in which the same sort of hijinks were attempted by a trial judge.  One Circuit Court wrote, “The adoption of a clearly erroneous jury instruction that entails a high probability of failure of a prosecution—a failure the government could not then seek to remedy by appeal or otherwise—constitutes the kind of extraordinary situation in which we are empowered to issue the writ of mandamus.”  The other Circuit Court wrote that courts “have permitted the Government to obtain writs of mandamus when a proposed criminal jury instruction clearly violated the law, risked prejudicing the Government at trial with jeopardy attached, and provided the Government no other avenue of appeal.”

What is this “writ of mandamus,” you might ask?  In a case like this one, it’s an order from a higher court – that would be the same 11^th Circuit Court of Appeals that has ruled twice against Cannon – to get the judge’s act together and correct a clearly erroneous application of the law or face consequences.  In this case, consequences would be a motion by the Special Counsel to recuse Cannon from the case because of repeated mistakes, each of which has been favorable to the defendant and prejudicial to the prosecution.

You can almost hear the Special Counsel sighing as he quotes the relevant sentence from the PRA defining a personal record under the law: a “document of a purely private or nonpublic character which do[es] not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.”  The top-secret documents that Trump is accused of stealing, on the other hand, fit precisely into the definition of an official document as spelled out in the PRA: a “document created or received by the President . . . in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.”

That would seem to be that, right?

Smith has clearly become aware that if Cannon is a doofus, she is a crafty one.  What Cannon is clearly attempting to create is a “heads Trump wins, tails you lose” situation for the prosecution.  She has not ruled on multiple motions made by Trump to dismiss the indictment, based on the PRA, his expansive claim of absolute immunity, prosecutorial misconduct, selective prosecution, and a defective search warrant, among others.  Why not?  Because an indictment dismissed now can be brought again, that’s why.

What Cannon is attempting to do is to lay the groundwork for a directed verdict of acquittal.  A motion for a directed verdict of acquittal can be made after the jury has heard the evidence presented by the prosecution.  But what will that evidence consist of?  If Cannon rules that certain evidence is inadmissible, then a motion for a directed verdict can be made because the evidence was insufficient to convict.  That the evidence would be insufficient because Cannon said it was inadmissible or defective is the Catch 22 that the Special Counsel is guarding against.   Every reply Smith has filed to motions made by Trump and orders issued by Cannon has the purpose of not allowing Cannon to get to the point where she can take it upon herself to acquit Trump, because if she does, the rules against double jeopardy will prevent Trump from being charged and tried again.

Maybe Aileen Cannon is not an ignoramus fumbling her way through a complex case, but rather a Justice Thomas in training.  What if she succeeds in delaying the trial until the election, and Trump wins?  Or if that doesn’t work, she engineers a directed verdict of acquittal before the election, and Trump wins?

If Trump wins the election in November, and one of the justices on the Supreme Court dies or resigns, she’s there.  Think of it.  Justice Cannon.