U.S. District Court Judge Aileen M. Cannon instructed lawyers to file proposed jury instructions by April 2 on two topics that are related to defense motions to have the indictment dismissed outright.
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Her two-page order, however, also suggests an openness to some of the defense’s claims that the Presidential Records Act allows Trump or other presidents to declare highly classified documents to be their own personal property. National security law experts say that is not what the law says, or how it has been interpreted over decades by the courts, particularly given the other laws that govern national security secrets.
Cannon asked the prosecutors and defense attorneys to consider two different hypothetical situations, writing: “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.”
In the first scenario, Cannon said, the jury would be allowed to review a former president’s possession of a record and make a factual finding whether “it is personal or presidential using the definitions set forth in the Presidential Records Act,” also known as the PRA.
The second scenario Cannon describes is one in which 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.”
That second hypothetical would appear to be one in which Trump seemingly could not be convicted under almost any set of facts of improperly possessing classified documents. It was not immediately clear how Cannon envisions a trial potentially based on that premise.
