Special counsel Jack Smith accuses Trump classified docs case judge of ‘fundamentally flawed’ juror request

Special counsel Jack Smith accused a federal judge late Tuesday of making a “fundamentally flawed” request regarding jury instructions as part of former President Donald Trump’s pending trial for hoarding classified documents in Florida.

Smith said US District Judge Aileen Cannon’s request for jury instructions rested on a faulty “legal premise” regarding “the possession and storage of classified information” and will “distort” the trial if allowed to stand, according to his court filing in the Southern District of Florida.

Cannon’s request asked for both Smith’s office and Trump’s attorneys to either assume in jury instructions that the former president could declassify any of the files or accept that the jurors must determine which documents were presidential or personal.

The instructions came as a response to the Trump team’s motion to dismiss the case under the Presidential Records Act (PRA) of 1978, which argued the statute authorized the former president to designate sensitive documents as his personal property after leaving the White House.

In his Tuesday filing, Smith argued that the president has no such authority and the distinction regarding personal records — based on Section 793 of the Espionage Act — had “no bearing” on Trump’s alleged retention of “national defense information.”

“[T]he PRA should play no role in the jury instructions on the elements of Section 793,” he wrote. “Indeed, based on the current record, the PRA should not play any role at trial at all.”

Smith further floated the option of an appeal to higher courts if Cannon “intends to include the PRA in the jury instructions.”

“[I]f the Court concludes … that a President has carte blanche to remove any document from the White House at the end of his presidency … that would constitute a ‘clearly erroneous jury instruction that entails a high probability of failure of a prosecution,’” he noted, citing a 1994 decision by the US Third Circuit Court of Appeals.

Smith also voiced concerns about a delay in the trial, which could push it back past Election Day 2024.

Trump attorneys Todd Blanche and Christopher Kise fired back in a Tuesday court filing that the more than 30 charges their client faces for improper retention of national defense information remained “unconstitutionally vague” — and renewed their motion to dismiss the case under the PRA.

“[T]his prosecution is based on official acts that President Trump took during his first term in Office,” they concluded, arguing Smith’s team would not be able to offer evidence to the contrary under the doctrine of presidential immunity.

Blanche and Kise previously asked for the case to be held off until the Supreme Court weighs in on Trump’s presidential immunity argument in the federal case Smith brought against him in Washington, DC, for alleged interference in the 2020 election.

The justices will hear arguments in that matter during the week of April 22, with a decision expected soon after.

Smith indicted Trump on 40 counts last year of willfully retaining the classified material and obstructing justice by misleading federal authorities and his own attorneys when they were sought.

The charges followed a back-and-forth between the former president and the National Archives that lasted more than a year — and eventually led to an FBI search of Trump’s Mar-a-Lago estate that turned up 102 classified files.

Cannon declined last month to respond to defense lawyers’ motions to dismiss the case, telling them that it would be “quite an extraordinary step,” while also pointing out to prosecutors that no president has ever been charged with illegally retaining classified documents.

Trump, 77, is currently scheduled to head to trial in Florida on July 8.

President Biden, 81, escaped federal charges in February despite having “willfully retained and disclosed classified materials” himself, according to a separate special counsel’s investigation conducted by Robert Hur.

In congressional testimony last month, Hur affirmed that his 388-page report “did not exonerate” the commander-in-chief but said he did not recommend charges in part, as the report notes, because a jury was likely to view Biden as an “sympathetic, well-meaning, elderly man with a poor memory.”