Judge Cannon got her idea for bizarre jury instructions from Trump's lawyers: report
Judge Aileen Cannon was widely criticized this week after issuing a request that lawyers draw up jury instructions that suggests she's considering letting Donald Trump defend himself in the Florida trial with his claim that he can declare classified documents his personal property.
And a report Wednesday suggests she might have gotten the idea directly from Trump's lawyers.
Lawfare's Roger Parloff revealed that, while in the courtroom in Florida for a hearing last week, he observed Trump's lawyers suggesting the same idea.
That hearing involved a request to dismiss the classified documents case, partly because Trump's team claims the Presidential Records Act lets him make classified documents his own personal property. Cannon was described as skeptical about the argument.
"Judge Cannon now turns to the criminal referral [the National Archives and Records Administration] made to the Department of Justice," Parloff writes. "Has NARA ever issued a criminal referral outside the context of these documents?"
Trump's attorney, Emil Bove, argued that it has been done before.
"But efforts to recover documents from a president are one of a kind. In light of NARA’s history —Judicial Watch, the Reagan diaries, Biden — there was no reasonable basis to believe there had been any crime. Our position is that the referral was unlawful agency action," Parloff summarizes Bove's comments.
Cannon then turned to the jury instructions asking, hypothetically, if she denied the motion to dismiss, what would the jury instructions be for “unauthorized” possession? Earlier in the hearing, Cannon asked "When does possession become unauthorized?"
Bove told Cannon the jury instruction would "absolutely have to include language from the Presidential Records Act, discussing Trump’s designation of the records as personal."
One legal analyst who purports to be a former C.I.A. counsel and runs the X account Secrets and Lies pointed to that excerpt, saying, "This whole jury instruction fiasco from Judge Cannon was actually suggested by Trump's lawyers."
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"It also seems clearer from Roger's write-up that she views the first formulation in her order as being favorable to DOJ, as it would be easy for DOJ to establish that classified docs were presidential (while still preserving the relevance of the PRA)."
"I think she'll adopt this."
He cited Cannon's jury instructions citation, which she released Monday.
"In a prosecution of a former president for allegedly retaining a document in violation of 18 U.S.C. Section 793(e), a jury is permitted to examine a record retained by a former president in his/her personal possession at the end of his/her presidency and make a factual finding as to whether the government has proven beyond a reasonable doubt that it is personal or presidential using the definitions set forth in the Presidential Records Act (P.R.A.)."
Legal analysts have said that, while Trump's lawyers claim that he was entitled to the documents deemed to be "personal" under the PRA, Cannon puts the burden of that decision on the jury when it's supposed to be for her to decide the motion.
"To be clear, there's nothing inherently wrong with a judge adopting a proposal from one of the parties — it happens every day," said the writer claiming to be a former CIA attorney. "But it's just more eyebrow-raising when the proposal is from Trump's lawyers; it's wackadoodle, and Cannon runs with it."