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Cannon tells lawyers to weigh if Trump conduct can’t be reviewed by courts
In classified documents case, legal arguments over jury instructions seem to take precedence over numerous other pretrial issues
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Juries are instructed on how to weigh the evidence just before they begin deliberating, so Cannon’s focus on this topic suggests she is not only thinking ahead to a trial of the former president, but already zeroing in on the end, rather than the beginning, of such a proceeding.
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.
Confusingly, she added in a footnote that any “separation of powers or immunity concerns shall be included in this discussion if relevant.”
Immunity is a topic for judges to decide, not juries, so it was not immediately clear what that language in Cannon’s order meant.
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.
After the hearing last week, Cannon issued a short order saying that while some of Trump’s arguments about the Espionage Act warrant “serious consideration,” she thought it was too early to dismiss charges based on disagreements over the definition of some terms in the World War I-era law.
At the same time, she suggested Trump could raise the issue later “in connection with jury-instruction briefing and/or other appropriate motions,” an invitation that appears to have led to Monday’s order. Trump had argued in his motion that the Espionage Act, which has been used for decades to convict others of improperly possessing classified documents, was too vaguely worded to be used in his indictment.
more:
http://www.washingtonpost.com/national-security/2024/03/18/trump-judge-cannon-jury-instructions-pra/
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