Subject: Re: The Cannon Jury Instructions
My $0.02 worth...

It's proof that Cannon has zero idea what she is doing and isn't even consulting other justices in her circuit for guidance. She was named a judge, and goll darnit, she's gonna judge stuff. She asked both parties to submit draft language they would ask to be presented as instructions to the jury in two VASTLY different legal scenarios.

ONE - In a prosecution of a former president for allegedly retaining documents in violation of 18 U.S.C. § 793(e), a jury is permitted to examine a record retained by a former president in his/her personal possession at the end of his/her presidency and make a factual finding as to whether the government has proven beyond a reasonable doubt that it is personal or presidential using the definitions set forth in the Presidential Records Act (PRA).

TWO - 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. Although there is no formal means in the PRA by which a president is to make that categorization, an outgoing president’s decision to exclude what he/she considers to be personal records from presidential records transmitted to the National Archives and Records Administration constitutes a president’s categorization of those records as personal under the PRA.

The thing is, NEITHER scenario she outlined as alternatives has any grounding in the actual correct interpretation of the Presidential Records Act. In scenario 1, it is not up to the JURY to make a determination about whether any document involved in the case is personal or presidential. That is SOLELY the position of the government. The jury only gets to decide if the president knowingly TOOK the documents or RETAINED the documents after being told they have them and they need to be returned. Scenario 2 DOES NOT APPLY and a TRIAL JUDGE doesn't have the authority to make up alternate interpretions of existing law then direct a jury to follow their invented interpretation or toss the case entirely on their own. (That's best left to the Supreme Court...)

It is 95% probable that she posed this ask to the counsel of both parties because she literally doesn't understand the core law to begin with and thinks this looks open-minded on her part to hear from both sides. It's very clear she doesn't understand the role of a JUDGE in making such determinations versus a JURY making such determinations. This determination of HOW the law applies and whether the case shoud be underway isn't a decision left to the jury in a criminal case.

If Cannon is to be attributed with even five brain cells, the only other plausible explanation I could give is that by having BOTH parties' counsel "bite" on her hypothetical question in this order then obey it without objection and submit proposed language for BOTH scenarios, she is setting up a situation DURING trial or at the end of the trial when it should go to the jury that she can rule from the bench to dismiss the case. Part of her argument will be that the prosecution even partially agreed with her by proposing language that hypothesized that a President HAD the power to instantly de-classify any document and thus escape prosecution under the PRA. Since Trump is claiming that's what he did and she thinks its the law, she could dismiss the charges before it reaches the jury and there is NOTHING the government can do in this case.

What she is not undestanding with this idiotic exercise is that the Presidential Records Act and the National Security laws applying to secret information are separate matters. Even if a President had complete unilateral authority to change the classification of a document or de-classify the document, it is still a SEPARATE legal requirement for the President to turn such documents over to the National Archives at the end of their term in office. Such a ruling would do nothing for that aspect of the charges.

At this point, it seems highly likely that Jack Smith and team MUST file an objection to this direction and possibly appeal to the circuit court of appeals to get her off the case. Per every legal expert I have seen interviewed on this topic, there is no validity to the questions she is raising. The situation now present is equivalent to a prosecutor showing up for a DUI case of someone nabbed driving 90mph in a 55 mph zone and having the judge demand they hypothetically address a "scenario" of the speed limit not really being 55 mph becase the defense has a novel interpretation of the meaning of "speed limits." The law here is that black and white. There are only two people in the courtroom trying to find gray in this scenario... Cannon and Trump.


WTH