April 3, 2024 – Jack Smith issues veiled threat to Judge Cannon over her jury instructions in Trump classified docs case

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Last month Judge Aileen Cannon issued a jury instruction order in Jack Smith’s classified documents case and the leftist legal analysts went apocalyptic.

Cannon gave two options for jury instructions.

The first option:

In a prosecution of a former president for allegedly retaining documents in violation of 18 U.S.C. § 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 (PRA).

The second option is:

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.

(Read more: Gateway Pundit, 4/03/2024)

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Jack Smith’s response is hysterical (and not in a funny way in a desperate way) bc he knows he has little control over her decision related to final jury instructions.

And he is arguing the basis for Trump’s “unauthorized possession” of national defense material rests on Obama exec order not the Presidential Records Act.

So everyone who cried for months that “DRUMPF BROKE THE PRA!” can sit down. Jack Smith says PRA now has nothing to do with the case.

Also reminder of the bait and switch here. NARA sought files based on the claims Trump was violating the PRA. He produced 15 boxes of papers. NARA then claimed they found records with “classified markings” and sent a criminal referral (1st time ever) to FBI.

FBI promptly opened investigation. FBI sent a subpoena to Trump in May 2022 seeking more records with “classified markings.” They turned over 38 more files.

Then in August, FBI sought search warrant seeking “national defense information.” Reminder too we have not seen full unredacted application for search warrant.

Did DOJ seek warrant under the PRA or the Espionage Act or Obama’s Exec Order or….what?

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I will separate out Smith’s threats to Cannon (unusual and toothless for the most part) later but this is basically the jury instructions DOJ wants to use.

This also might be a problem for DOJ bc it appears Trump still had Q security clearance at Dept. of Energy–one that DOE retroactively rescinded after Smith indicted Trump.

Also during March 14 hearing, DOJ claimed there was no formal process for a president to either receive or lose security clearance. So this might be another area of contention.

This is why Smith is so angry–he knows if Cannon proceeds with the proposed scenario presented in her jury instructions order, he is, as one defense attorney told me at the time, f*cked.

He essentially demands that she rule now on jury instructions (she doesn’t have to) or dismiss the counts so he can appeal. If she doesn’t, he might seek “mandamus” at appellate court–asking 11th Circuit to tell Cannon what to do in the case. Very rare.


Judge Cannon responds 4/04/2024: