Judge Aileen Cannon on Monday asked both parties in Donald Trump's classified documents case to weigh in on jury instructions — a move that was roundly criticized as "legally insane" and "utterly nuts."
Cannon asked lawyers to file jury instructions on two topics — having jurors review a record kept by Trump and decide if "it is personal or presidential using the definitions set forth in the Presidential Records Act," and if jurors believe the former president can rightfully consider the documents his personal property.
The move was criticized on many levels, mainly because she's considering jury instructions before a trial date is even set. But also that the Presidential Records Act is at the core of a move by Trump to dismiss the classified documents case outright — which she heard arguments for last week.
Juries are instructed after testimony and before they begin deliberating, which suggests Cannon believes his argument is valid enough to be considered.
"The reason this is so legally wrong is that the two options that she asked Jack Smith and Donald Trump to address — both have the same faulty legal premise, which is that these documents can be determined under the Presidential Records Act to be personal versus governmental documents," said former Assistant U.S. Attorney Andrew Weissmann said on MSNBC Tuesday.
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"The real problem with both option 'A' and option 'B' is that the Presidential Records Act is irrelevant," he continued. "The former president has not been charged with a violation of the Presidential Records Act. He's being charged with keeping classified information, national defense information at Mar-a-Lago, and obstruction of justice. That has nothing to do with the Presidential Records Act."
He said that option "A" is like Cannon telling Jack Smith to address the jury charge that the Earth is flat. Option "B" is as if the jury is deciding if the Earth is square.
"Both of those are absurd," said Weissmann. "They're legally just fundamentally wrong. There are a number of other things that are wrong with those two options. The big picture issue is what is it going to take to tee up this case so that Jack Smith can get to the 11th Circuit [Court of Appeals]? I think it is absolutely beyond question at this point that this judge is way too inexperienced for this case and has shown her partisanship."
Thus far, Cannon has been reversed twice by the 11th Circuit Court of Appeals in scathing rebukes in decision related to Trump. Weissmann says it's clear she "didn't learn her lesson."
"She's continued to do the same thing. This order that came out yesterday is the kind of thing that — I have never seen. I have never seen something so completely off-the-wall, both legally and even in the way it's presented. So the issue is, is Jack Smith going to figure out how to get this to the 11th circuit and get her removed?" he said.
MSNBC legal analyst Katie Phang said that the question remains whether Cannon is committing "unforced errors' that can be attributed "to her inexperience." What is becoming an issue, she said, is that each of these errors is in favor of Donald Trump.
"Andrew raises a really important point," said Phang. "How does Jack Smith get this to the 11th Circuit? There's a lot of response at large, why can't Jack Smith just take this to the 11th Circuit and kick her off the case? It's not that easy. So, where we are procedurally is the posture of this case necessitates a move being made by Cannon. This order — this gobbledygook order is not enough. It's just not."
Cannon has no trial date set "and now she's asking for jury instructions?" Phang exclaimed. "Jury instructions for a trial date that really hasn't been confirmed yet?"
Then there's the matter of "double jeopardy," which comes into play after a jury is sworn in, she said.
What Cannon could do is delay deciding on whether Trump can be acquitted because of the Presidential Records Act. If she swears in the jury and then suddenly proclaims that she's going to step in, take the case away from the jury and then say Trump is acquitted due to the P.R.A., then Trump can't be tried again, she said.
"What is the recourse for Jack Smith then? None," said Phang.
See the segment in the video below or at the link here.
How Jack Smith can get rid of Judge Cannon — and why he hasn't so far www.youtube.com
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