The judge overseeing Donald Trump's classified-documents trial has been criticized for instructing lawyers from both sides to provide potential jury instructions that relate to the former president's motions to dismiss the case, with an expert calling one scenario "legally insane."
In a two-page order Monday, Judge Aileen Cannon asked Trump's lawyers and the office of Special Counsel Jack Smith to submit two "competing scenarios" regarding the interpretation of the Presidential Records Act that are a "correct formulation of the law" to be given to a jury before it begins its deliberations.
Trump is seeking to dismiss the federal case, claiming that the PRA allowed him to determine the sensitive materials he took from the White House in January 2021 as his personal property, so he cannot be charged with their unauthorized possession.
Cannon, who was nominated to the bench by Trump and has faced frequent criticism for her decisions during the classified-documents proceedings, previously expressed skepticism during a motion-to-dismiss hearing that this argument was a valid reason to dismiss the entire case before it reached a jury. During the same hearing, Cannon rejected another motion to dismiss from Trump regarding the wording of the Espionage Act, but she said the arguments could be raised again in connection with jury-instruction briefing.
A number of legal experts have now condemned Cannon's request for Trump's and Smith's lawyers to put forward arguments that could be given to the jury at the end of the trial, even before the judge has confirmed when the former president can stand trial to face the 40 federal charges.
In the first scenario Cannon required, both parties would outline for a jury's consideration whether a record retained by a former president at the end of their time in office is their personal property and whether the government had proved beyond a reasonable doubt that "it is personal or presidential using the definitions set forth" in the Presidential Records Act.
The second scenario required by Cannon would lay out the arguments in which a president "has sole authority under the PRA to categorize records as personal or presidential" during their presidency.
The second scenario is related to the main argument Trump has put forward in his defense—that he did not break the law by keeping classified materials recovered from his Mar-a-Lago resort in August 2022, as the PRA allows him to designate sensitive materials as his own personal property.
Bradley P. Moss, a lawyer who specializes in national security, described the second scenario as "legally insane."
"If that were the case, then just grant Trump's motion to dismiss on PRA grounds so DOJ [can] bring it to the 11th circuit for a quick reversal," Moss wrote on X, formerly Twitter.
George Conway, a lawyer and frequent critic of Trump, wrote: "In the decades that I have been a lawyer, this is the most bizarre order I've ever seen issued by a federal judge.
"What makes that all the more amazing is that the second and third most bizarre orders I've ever seen in federal court were also issued by Judge Cannon in this case."
In a series of posts, Norm Eisen, who served as a special counsel to the House Judiciary Committee during the former president's first impeachment, said: "Cannon seems inclined to push the case to trial but is basically asking if she can stack the deck so Trump wins.
"It's clumsy & amateurish—seems to know she's wobbly & she's asking the parties for help with threshold things that are normally figured out by the judge."
Newsweek has contacted Trump's legal team and Smith's office for comment via email.
Under the Presidential Records Act, which was implemented in the wake of President Richard Nixon's Watergate scandal, all presidential documents must be sent to the National Archives and Records Administration when the commander in chief leaves office, as they belong to the federal government.
If an outgoing president wishes to have their official documents publicly presented, such as in a library, they must seek permission from NARA, and the materials must remain under NARA custody.
Trump is accused of illegally retaining classified documents, hoarding them at his Mar-a-Lago resort and obstructing federal officials' attempt to retrieve them.
The trial is scheduled for May 20, but Cannon is expected to postpone the start of proceedings in a future decision.
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Ewan Palmer is a Newsweek News Reporter based in London, U.K. His focus is reporting on US politics, domestic policy ... Read more
