Former federal prosecutor Glenn Kirschner is among the myriad legal commentators portraying Judge Aileen Cannon‘s recent decisions in the Donald Trump Mar-a-Lago classified documents case as a trap for Special Counsel Jack Smith. Former federal prosecutor Renato Mariotti addresses the same below.
This is important — Judge Cannon refused to make a decision regarding Trump’s absurd Presidential Records Act arguments before the Mar-a-Lago trial begins.
— Renato Mariotti (@renato_mariotti) April 4, 2024
By refusing to make a decision, Jack Smith has nothing to appeal.
If Cannon instructs the jury incorrectly and Trump is… https://t.co/rnFltSCdqq
In an order denying Trump’s request to have the case dismissed on his argument that the Presidential Records Act (PRA) made the documents in question his “personal” documents, Cannon nevertheless didn’t defang Trump’s PRA argument entirely and instead let it linger as part of the potential jury instructions.
Smith had recognized the PRA argument as perilous to his case, and asked the judge not merely to deem that it was no reason to dismiss the case, but to eliminate the PRA argument from the trial entirely.
Rejecting Smith’s request, Cannon wrote: “Separately, to the extent the Special Counsel demands an anticipatory finalization of jury instructions prior to trial, prior to a charge conference, and prior to the presentation of trial defenses and evidence, the Court declines that demand as unprecedented and unjust.”
By leaving it there, Cannon allows that a jury could use it to clear Trump, at which point the decision would not be appealable. Kirshner called Cannon’s decision “the most mind-blowing potential abusive judicial discretion imaginable.”
[NOTE: “Abuse of discretion” is a legal term, defined by the law.com legal dictionary as “a polite way of saying a trial judge has made such a bad mistake (‘clearly against reason and evidence’ or against established law) during a trial or on ruling on a motion that a person did not get a fair trial. A court of appeals will use a finding of this abuse as a reason to reverse the trial court judgment.” Except in this case, which accounts for Kirschner’s “mind-blowing” adjective, it would not be subject to appeal.]
University of Texas law professor Lee Kovarsky confirms the appeal would be sunk, noting: “If the jury acquits on a faulty instruction or if she directs a verdict before the jury has a crack at it, they cannot actually reset and retry.”
Kirschner railed against Cannon’s position, characterizing her thinking: “I will wait until after the jury is sworn. I will wait until after evidence has been presented. I will wait until after Donald Trump has put on his defenses. And ‘I still may give that lawless jury instruction about how the Presidential Records Act means the jury must find Donald Trump not guilty. And guess what, Jack [Smith]? You can’t appeal it at that point. Game over,'” he said.
