by Jeff Childers
The judge in the South Florida Mar-a-Lago raid case, Judge Aileen Cannon, entered a very interesting two-page order yesterday. Online Trump Derangement Syndrome sufferers immediately decided the order was so strategically helpful to Trump that Judge Cannon must be secretly getting help from someone smarter than she is:
Many TDS people are calling for Judge Cannon to be removed because of how effective she’s been:
If you read the short order, you wouldn’t make heads or tails of it. You certainly wouldn’t understand all the liberal angst. In a few paragraphs, Judge Cannon simply proposed two dense jury instructions about the President’s authority under the Presidential Records Act, and asked the lawyers to propose alternative instructions if they don’t like hers. She also asked them to identify what, exactly, the jurors are supposed to decide on those two issues.
Asking parties to prepare jury instructions is unremarkable. In every jury trial, the instructions always come from the parties. Both sides propose instructions, try to work out any differences, and if they can’t agree the judge decides whose instruction wins. Or the judge can draft their own instruction. (Judges would rather use mutually-agreed instructions because it eliminates appeals over jury instruction wording.)
That said, asking for two specific instructions, and proposing the language first, is not common. So people are right to conclude the judge is up to something.
Courtwatcher Julie Kelly thinks Judge Cannon is trying to build an airtight case for dismissal. As it happens, Judge Cannon is currently considering a Trump motion to dismiss his case for “selective and vindictive prosecution.” That motion argues that it’s unconstitutional to prosecute Trump since Biden did the same thing (or worse) and isn’t being prosecuted by DOJ.
Judge Cannon is still thinking about it.
This latest order focuses on some difficult language in the Presidential Records Act. It’s not perfectly clear what is the difference between documents that are “personal” and documents that are “presidential,” including who decides which documents are the President’s “personal” documents versus which ones are considered “presidential.”
Does the President decide? If not the President, then who? Who has more authority than the President? Santa Claus? A divine being? David Copperfield? Is a seance involved?
Julie Kelly thinks the judge forcing the government to take a position on what that PRA language means, so that she can turn around and hang them with their own words. Simply put, it looks like Judge Cannon is setting them up for something.
I have a general rule to be 1,000 times more cautious whenever a judge asks me to concede something. Especially if the judge seems like he’s trying to be innocently helpful. For instance, the judge might ask, “Mr. Childers, would you concede the sky is colored blue?” That’s a red flag. Usually judges ask for concessions to set lawyers up, so later they can’t appeal the judge’s decision. After all, they conceded. So I’m likely to answer with something like, “well your honor, sometimes the sky has clouds in it, which are white. Plus, the sun is yellow. So, no, I can’t concede the sky is blue.”
Something like this must be what Julie Kelly senses. Judge Cannon’s request for the government to draft two jury instructions feels like a way to get them to concede something, to set them up, to make the government take a position that Judge Cannon can then rule on somehow, based on their own words.
It sure seems like more good news. Certainly, both the Fani Willis case and this Mar-a-Lago Raid case now seem heading in the right direction, with smart, reliable judges at the helm. Only Judge Engoran’s case still feels out of control, and of the three, Engoran’s is the least problematic case for Trump, since it’s only about money and has no chance of jail.
Reviewing my notes from last week’s classified docs hearing to try to explain Judge Cannon’s jury instruction motion filed yesterday.
Cannon repeatedly asked DOJ to identify the official, individual responsible for “authorizing” retention of national defense info. She drilled down on what she said “struck me as interesting…the timing of the indictment,” noting Trump’s alleged “unauthorized possession” happened on Jan 21, 2021.
Jay Bratt, Jack Smith’s lead prosecutor on the case, confirmed the government believes Trump’s “unauthorized” possession of national defense information occurred “the moment he left office.”
Really?
So the controversy rests on whether Trump as president (which is why this is different than Biden’s unauthorized possession of documents bc he never had the authority to declassify or determine personal v presidential records) had the authority as president before he left office to permit his possession of the records.
This is the best Jack Smith could do in defining “unauthorized” to meet language in Espionage Act. Since no former president has ever been prosecuted for this–another point repeatedly raised by Cannon–DOJ has no historical precedent to argue an outgoing president cannot confer “authority” on himself for possessing NDI papers.
So this is partially when Presidential Records Act terms come into play–the basis of her questioning last week and jury instruction order last night:
LINK
There is no case regarding President Trumps retention of documents under the PRA. Judge Cannon should tell jack smith to go pound sand.