Last night she released a ridiculous order requiring the prosecution that may end up getting her removed from the case. Joyce Vance wrote about it in her newsletter:
Late in the day, Judge Cannon gave an order in the Mar-a-Lago case that has a lot of people shaking their heads. In an order that consisted of two pages and three footnotes, the Judge gave both sides until April 2 to “file proposed jury instructions limited to the essential elements of the offenses charged in Counts 1 through 32.” The trial is scheduled for May, and the Judge still has key motions to consider. This is a short deadline for a Judge who has been comfortable keeping far more pressing matters on a back burner.
Although the order is only two pages, it’s perplexing. I read it several times, trying to figure out what it means. It turns out it’s two pages of crazy stemming from the Judge’s apparent inability to tell Trump no when it comes to his argument that he turned the nation’s secrets into his personal records by designating them as such under the Presidential Records Act. After failing to reach a final decision on that motion last week, she is now presenting the parties with two “legal scenarios,” each of which seems to assume that the Presidential Records Act gives Trump the ability to morph national secrets into personal papers. Her two scenarios involve two different ways the Presidential Records Act could help Trump out, but they’re both wrong. The Presidential Records Act isn’t a way around the rules for handling classified information. Just like when the Eleventh Circuit reversed her when she tried to prevent the government from using the items seized during the search of Mar-a-Lago in its investigation, Judge Cannon misses the fact that these items were government property, not Trump’s personal possessions.
In her order, the Judge writes, “understanding that juries are judges of the facts, not the law, the proposals shall take care to specify … exactly what factual questions are reserved for the jury on Counts 1 through 32 in light of the recently argued motions to dismiss.” Then, she goes on to say, “With respect to the proposed language pertinent to the issue of “unauthorized possession” specifically, the parties must engage with the following competing scenarios and offer alternative draft text that assumes each scenario to be a correct formulation of the law to be issued to the jury, while reserving counterarguments.”
First off, juries indeed decide issues of fact not issues of law. So the Judge should be doing the heavy lifting here. Instead, she seems to want to pass this off as a quasi-factual issue, asking the lawyers to figure out how she can let the jury decide whether Trump transmogrified classified documents into personal property. (Even if he pulled off that feat, it wouldn’t prevent Trump from being prosecuted for violating a criminal law that protects National Defense Information, because Trump can’t magically change the nature of the information contained in the documents recovered during the search of Mar-a-Lago.)
Second, lawyers don’t write hypothetical jury instructions. They propose the instructions they believe are correct and the judge makes a final decision about how to instruct the jury as to the law it must apply, once the jury decides what the facts are. I’ve never had a judge say, “you know, I have no idea what the law is here, so lets make a couple of different assumptions about it, and even though they’re both wrong, give me some ideas.”
The assumptions in Judge Cannon’s two scenarios virtually direct the jury to find Trump not guilty, by suggesting that a president can hold onto any government property he wants to as long as he designates it as personal before he leaves office. The only questions she leaves open is whether anyone can second guess a former president who pinky promises he decided something was personal before he went back home. For instance, in the first one, she directs the lawyers to assume that juries get to examine each item a former president is charged with retaining and decide whether the government has proven that it is personal or presidential. So, it’s up to the jury to decide what’s personal and what isn’t.
In her second scenario, she writes, “A president has sole authority under the PRA to categorize records as personal or presidential during his/her presidency. Neither a court nor a jury is permitted to make or review such a categorization decision. Although there is no formal means in the PRA by which a president is to make that categorization, an outgoing president’s decision to exclude what he/she considers to be personal records from presidential records transmitted to the National Archives and Records Administration constitutes a president’s categorization of those records as personal under the PRA.” In other words, Judge Cannon believes Trump has a magic wand that could turn the nuclear codes into his personal notes as long as he says he did it, and no one has the right to tell him no.
So Judge Cannon, who didn’t rule for Trump on the specious Presidential Records Act motion last week, essentially acknowledged she intends to do so today. She’s wrong about the law, offering two options, one that is really bad and one that is worse. Under option one, if only one juror thought a record had been designated by Trump as personal, he’d be acquitted. But under option two, as long as Trump says they’re personal records, the government is entirely out of business. Presumably, the Judge would take the case away from the jury and dismiss the charges. And that’s nuts, because, I’ll say it again, it means Trump (and any future president) can take documents clearly marked as Top Secret and containing information about matters like nuclear codes, U.S. battle plans, or information that identifies highly placed human sources putting their lives at risk, declare them to be his personal papers and walk out of the White House with them.
The government can’t play ball here with Judge Cannon’s bad interpretation of the law. Expect their response to be hard-hitting. The bottom line is that the Presidential Records Act doesn’t forgive Trump for violating criminal laws regarding handling of national secrets.
If you watched Weissmann in the video above you know that he thinks Smith will take it to the 11th circuit forthwith and ask for Cannon to be removed. She is in the tank for Trump and over her head and this case concerns some really important issues which the courts just can’t let slide because Trump is such a special boy. Well, I say “can’t” advisedly. They can do whatever they want and there’s nothing we can do about it. Let’s just hope they don’t.