The federal judge overseeing former President Donald Trump’s classified documents case in Florida needs to clarify recent instructions to parties so the government can seek a higher court ruling, special prosecutor Jack Smith said on April 2.
The parties must offer “alternative draft text” that assumes two “competing scenarios” are “a correct formulation of the law,” she wrote. The scenarios are former presidents’ ability to retain personal records under the Presidential Records Act (PRA), and presidents’ ability to designate records as personal.
The distinction in the PRA between personal and presidential records is irrelevant because President Trump has been charged under the Espionage Act, prosecutors said.
“Based on the current record, the PRA should not play any role at trial at all,” they wrote, urging Judge Cannon to “decide whether the unstated legal premise underlying the recent order does, in the court’s view, represent ‘a correct formulation of the law.’”
If Judge Cannon decides that it does, the filing states, then the government may seek intervention from a higher court.
They cited a ruling by an appeals court in a separate case that concluded, “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.”
A writ of mandamus is an order to a lower court.
“The question of whether the PRA has an impact on the element of unauthorized possession ... does not turn on any evidentiary issue, and it cannot be deferred,” prosecutors said. “It is purely a question of law that must be decided promptly. If the court were to defer a decision on that fundamental legal question it would inject substantial delay into the trial and, worse, prevent the government from seeking review before jeopardy attaches.”
President Trump, charged with 32 counts of violating the Espionage Act for retaining what the government described as national defense documents and other sensitive materials after his presidency, has stated that under the PRA, he could designate even classified records as personal and retain them upon leaving office.
Proposed jury instructions from President Trump said that to establish unauthorized possession of the records in question, “the government must prove beyond a reasonable doubt” that the document the jury is considering “is a ‘presidential record’ and not a ‘personal record.’”
“Before the end of President Trump’s term in office on January 20, 2021, President Trump had exclusive authority under the Presidential Records Act to, himself or in working with his staff, categorize records as either ‘presidential records’ or ’personal records,' and he was authorized to possess both types of records,” the defense’s proposed instructions state.
In proposed instructions from prosecutors, jurors would be told that possession of classified records is unauthorized if a person “does not hold a security clearance or the individual does not have a need to know the information.”
“I instruct you, however, that, as to a former president, even if he lacks a security clearance, lacks a need to know classified information, and stores information outside of a secure facility, he is authorized to do so if the classified information is contained within a ‘personal record,’ as that term is defined by the Presidential Records Act (PRA), a statute that establishes the public ownership of presidential records and ensures the preservation of presidential records for public access after the termination of a president’s term in office,” the prosecution’s proposed instructions state.
“Therefore, to determine whether the defendant had ‘unauthorized possession’ of the documents charged in Counts 1-32, you must determine whether each document was a ‘presidential record’ or a ‘personal record’ within the meaning of the PRA.”
Prosecutors said they were offering the draft instructions to comply with Judge Cannon’s order even as they protested against the premise.
