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Albaby, can you help me understand why she is doing this and how it affects the trial?

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.

https://www.newsweek.com/aileen-cannon-jury-donald...

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

Yes, thank you, I'm reading this several times in a Tramadol haze at points and having trouble with why she thought this was ok to do. She very seriously is showing everyone she doesn't understand the case and letting everyone know at a national level. By now she's thoroughly embarrassed and will double down.

Albaby, can you help me understand why she is doing this and how it affects the trial?

Here's my take:

One of the defenses that DJT has raised is that the documents in question were "personal records" under the Presidential Records Act. The government disagrees. That's pretty straightforward.

A complicating factor is that DJT has argued that a determination by the President that records are "personal" under the PRA is not reviewable. A court does not have the ability to come in and determine, after the fact, that the President somehow got it "wrong" when designating those records as personal. It's a purely discretionary act (goes the argument), so there's no standards or criteria or limits that a court can apply after the fact to determine whether the President made a mistake. Rough analogy - the exercise of the Pardon Power, which is completely discretionary and not based on any criteria, so there's nothing for a court to review. The government disagrees, and claims that these determinations can be correct or not correct, and that a court can make that call.

Normally, we would expect the judge to decide which of those two competing arguments is correct. It's a legal issue. Judges rule on legal issues. Rather than decide that now, though, Cannon instead has asked the parties to draft jury instructions under each scenario. Legal observers have said (correctly, IMHO) that this is bonkers - rather than draft jury instructions, just rule on whether PRA decisions are reviewable or not, and move forward accordingly.

If I had to guess what she's trying to do, it would be the following. Cannon hasn't yet ruled on whether PRA decisions are reviewable or not. Note - this is bad. The one trait that is essential to being a judge, whatever their judicial philosophy or temperament, is to be decisive.

Despite her dithering on the reviewability question, though, she's made up her mind that if they are reviewable, then whether the President was correct or not in designating something personal is a question of fact for the jury. IOW, whether the decision is reviewable is a question of law - but if it is reviewable, whether any individual designation as to any individual document is correct would be a question of fact, and therefore goes to the jury. Which she suspects (correctly) that the government will have a real problem with, because the documents are classified and they're not going to want to let random citizens without clearance see them. IMHO, she believes that whether the jury can review the documents is relevant to the decision whether the PRA designation choice is reviewable or not - maybe under a theory that if the designation is reviewable and has to be reviewed by the jury (not the judge), and if the jury can't look at the documents, then the designation can't be reviewable?

An experienced and confident judge would just have the government brief that issue. Schedule a hearing, tell them that you're concerned about how a criminal court can review a PRA choice if it's a jury question and the documents are classified, and have them respond. Cannon doesn't seem to be experienced or confident, so she's issued this weird order to try to smoke out the government's stance on this by having them write a jury instruction. Rather than a brief.

I think Joyce Vance agrees with you from https://joycevance.substack.com/p/four-corners#:~:...

So Judge Cannon, who didn’t rule for Trump on the specious Presidential Records Act motion last week, essentially acknowledged she intends to do so today. She’s wrong about the law, offering two options, one that is really bad and one that is worse. Under option one, if only one juror thought a record had been designated by Trump as personal, he’d be acquitted. But under option two, as long as Trump says they’re personal records, the government is entirely out of business. Presumably, the Judge would take the case away from the jury and dismiss the charges. And that’s nuts, because, I’ll say it again, it means Trump (and any future president) can take documents clearly marked as Top Secret and containing information about matters like nuclear codes, U.S. battle plans, or information that identifies highly placed human sources putting their lives at risk, declare them to be his personal papers and walk out of the White House with them.

And that’s nuts, because, I’ll say it again, it means Trump (and any future president) can take documents clearly marked as Top Secret and containing information about matters like nuclear codes, U.S. battle plans, or information that identifies highly placed human sources putting their lives at risk, declare them to be his personal papers and walk out of the White House with them.

No, it doesn't. Or rather, it doesn't change whether they can do that today.

The law doesn't currently prohibit the President from taking all of those documents and walking out of the White House with them. He's the President. As long as he's the President, he is allowed to take anything he wants from the White House and move it down to his Little White House (whether that's in Mar-a-Lago or Delaware or wherever). All that the criminal law requires is that he give them back when asked. The PRA defense is a defense to the crime of not giving the records back (at least, that's the argument - I think he has an obligation to return those documents whether they're personal records or not). But not really relevant to whether he was allowed to take them in the first place.

the simplified analogy i found useful :
A. prepare a case for the earth being flat
B. prepare a case for the earth not being flat

why? because the JUDGE is incapable of grasping which may not be a sensible approach.

removal of cannon would certainly cause delays that trump welcomes, but nothing rational would happen with her before the election anyway. jack smith would have to commit to continuing efforts in 2025.

All that the criminal law requires is that he give them back when asked.

So it's not the case that if documents are personal records - either judged to be by law or as a matter of jury determination - they don't have to be given back when asked? Could copies be made and those kept if the originals are returned?

So it's not the case that if documents are personal records - either judged to be by law or as a matter of jury determination - they don't have to be given back when asked? Could copies be made and those kept if the originals are returned?

Short answer: they probably have to be given back.

The relevant statute reads:

(e)Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; or

https://www.law.cornell.edu/uscode/text/18/793

So, the Presidential Records Act dispute is over whether the bolded phrase - "unauthorized possession" - can be proven by the prosecution. But here's the thing - there's an exactly parallel subsection (18 USC 793(d)) that has the exact same language that applies to anyone "lawfully having possession...." of all that stuff as well. The defense is proceeding on a theory that if they can prove that Trump had lawful possession of the documents under their PRA case that section (e) doesn't apply (which is probably correct). Presumably, they also have an argument lined up that the PRA would mean that section (d) (as a lesser included offense) also doesn't apply (which I don't see).

So, the Presidential Records Act dispute is over whether the bolded phrase - "unauthorized possession" - can be proven by the prosecution. But here's the thing - there's an exactly parallel subsection (18 USC 793(d)) that has the exact same language that applies to anyone "lawfully having possession...." of all that stuff as well. The defense is proceeding on a theory that if they can prove that Trump had lawful possession of the documents under their PRA case that section (e) doesn't apply (which is probably correct). Presumably, they also have an argument lined up that the PRA would mean that section (d) (as a lesser included offense) also doesn't apply (which I don't see).

Hmm. I'm not much liking the sound of this. It seems that the only hope of a conviction is going to be if Cannon gets replaced.

Hmm. I'm not much liking the sound of this. It seems that the only hope of a conviction is going to be if Cannon gets replaced.

Maybe not. She didn't rule that the PRA decisions are unreviewable or that the charges need to be dropped. She seems to still be proceeding to a trial, and if there's a trial then the defendant could be acquitted or convicted.

That's what's so crazy about this. This is a legal question, not a factual one. She can decide this issue. She's the one who's supposed to decide this issue. And she's supposed to decide before the trial.

Sometimes you have contingent jury instructions that come into play based on a factual dispute ("If you find the defendant knew the gun was loaded, apply X standard; if you find the defendant did not know the gun was loaded but should have checked, apply Y standard"). So you ask the parties to proffer jury instructions for both possible decision branches. But not for different legal theories - because the judge is supposed to decide which legal argument is correct. Before the trial.

Can she be removed from the trial? It seems there is cause given that she doesn't know the difference between a legal question and a factual one. It sounds like it would be an easy argument to make that she is unqualified to preside over this trial (at the minimum).

So, the Presidential Records Act dispute is over whether the bolded phrase - "unauthorized possession" - can be proven by the prosecution. But here's the thing - there's an exactly parallel subsection (18 USC 793(d)) that has the exact same language that applies to anyone "lawfully having possession...." of all that stuff as well. The defense is proceeding on a theory that if they can prove that Trump had lawful possession of the documents under their PRA case that section (e) doesn't apply (which is probably correct).

-------------------

The key to arriving at a correct interpretation of the applicable laws will require separating the facts at hand into separate buckets and ensuring terminology doesn't get intentionally mixed across the buckets. It could be argued that any attempt to escape the proper interpretation and enforcement of these laws will require intentionally MIXING these concepts to confuse a potential jury or provide cover to a judge attempting to ignore the actual law for the benefit of a defendant.

The buckets of fact are:

1) the NATURE of the documents -- Here, the PRA governs and clearly states documents subject to the PRA are all agency originated documents, working papers, drafts, etc. that are shared with the Administration AS WELL AS personal notes, logs, diaries maintained by the President. As far as the PRA is concerned, the word "mine" doesn't exist when it comes to Presidential records. The only applicable word is "ours" as in the National Archives. Note that the applicability of the PRA has nothing to do with the security classification of the material. Even documents related to the planning and execution of the yearly Easter Egg roll on the South Lawn are covered by the PRA.

2) the PHYSICAL location of the documents at a particular point in time -- A sitting President is allowed to take any document anywhere he/she wants to go. The White House residence area, the President's personal home or vacation home, the President's favorite bar. There is a presumption that anything the President deems is "needed" near his / her physical being is allowed and that his Secret Service detail would presumably provide enough protection for that material. These rights of a President to physical posession of such materials VANISH when the person is no longer President.

3) the unlawful HOUSING and RETENTION of documents -- It isn't unlawful to accidentally pack a document subject to the PRA at the end of an administration and take it somewhere outside the control of the National Archives or the government. If such a document is identified by the National Archives, a request is filed to find and return the document and the document is returned, there's no crime. If instead missing documents ARE identified and the former President refuses to return them, then the government can prove INTENT to house and retain the documents and we have a crime, regardless of the national security nature of the document.

4) the unlawful TAKING, HOUSING and RETENTION of national security documents -- This law is broader than the PRA because it covers the actions of ANY American citizen INCLUDING the President or staffers working within the White House for a President. For personnel who are NOT the President, this law drastically restricts WHAT material can be seen by individuals and drastically restricts WHERE those documents can be viewed and retained throughout their life. A person other than the President with TOP SECRET clearance in possession of or viewing a document classified as TOP SECRET within a facility not rated to phsyically house and protect TOP SECRET documents (e.g. a SCIF) is violating the law regarding national security information. There are other aspects of national security laws regarding HOW documents are classified based on their content or department of origin and control HOW such classifications can be changed and those laws do NOT provide any sitting President the ability to single handedly and instantly change a classification. The President can originate a request to change a classification (up or down) or remove it entirely but that process involves review so affected agencies can triple check such changes would not divulge OTHER classified info and expose American or allied intelligence assets to harm.

At this point, Cannon's actions only support a limited number of possible explanations.

A) She doesn't understand the intent or application of the applicable laws and is making ZERO effort to educate herself by consulting competent counsel in the area of national security. This is evident because she is issuing these terse, hair-brained directives within MINUTES of the conclusion of four hours of presentations in front of her. It is also worth noting that her decisions include ZERO citations of prior cases that she is using to support her decision, in glaring contrast to any other opinion that has gained public attention over all of these recent Trump cases. Despite her written statemtents describing her "careful consideration" of the matter, there's no way she drafted a response within thirty minutes of concluding oral arguments from the two parties. It appears she had the next decision pre-drafted and was going through the motions by scheduling and conducting oral arguments.

B) She doesn't understand the intent or application of the law but is merely trying to identify a suitable level of perceived vagueness in the applicable law she can further muddle to justify coming to a decision which seems guaranteed to support tossing the entire case. Only worse, she is so intellectually incompetent and lazy that she is attempting to perform a bit of legal jujitsu on the lawyers in the case to get them to do her homework for her and volunteer language in the statutes that more learned persons of the law might fret about so she can cite THAT as rationale for whatver inanity she finally concocts.

At this point, I suspect this may explain why Jack Smith has not augmented the charges in the Florida case with the actions related to the documents taken to New Jersey. If Cannon waits until a jury is empaneled to suddenly toss this case, double-jeopardy protections will have attached to these charges and there is no way for prosecutors to re-file these charges against Trump. It seems clear the material shared with reporters in New Jersey was also highly classified and is of equal national security importance to anything recovered at Mar-a-lago so Smith is likely freaking out about the risk of having all potential charges for these national security threats destroyed by an incompetent at best or thoroughly corrupted judge.


WTH

albaby1: This is a legal question, not a factual one. She can decide this issue.

Well, here's what's especially troubling: Cannon actually saw these records at the Sec. 4 hearing. Cannon knows these highly classified intelligence documents are not "personal" in nature.

Can she be removed from the trial?

No. Federal judges are appointed for life. If she's making mistakes, those mistakes can be corrected on appeal.

Well, here's what's especially troubling: Cannon actually saw these records at the Sec. 4 hearing. Cannon knows these highly classified intelligence documents are not "personal" in nature.

So what? Under the Constitution, criminal defendants are entitled to a jury trial (unless they waive that right). Even if facts are obvious to the judge, it's the jury that has to decide factual questions.

Can she be removed from the trial? It seems there is cause given that she doesn't know the difference between a legal question and a factual one. It sounds like it would be an easy argument to make that she is unqualified to preside over this trial (at the minimum).

-----------------

She is quite qualified using the Fani Willis scale of legal excellence.

Sure. But can either side request removal from this particular trial? She should probably be removed from the bench entirely, but that isn't really what I was asking.

Or is the only recourse an appeal? As another poster noted, if she throws out the charges then we get into a double-jeopardy situation, which I don't believe is appealable.

No. Federal judges are appointed for life. If she's making mistakes, those mistakes can be corrected on appeal.

But I thought Jack Smith can file a complaint of incompetence with the 11ᵗʰ Circuit NOW, and they can rule that she must either recuse, or they will appoint a new judge for this case regardless.

1) the NATURE of the documents -- Here, the PRA governs and clearly states documents subject to the PRA are all agency originated documents, working papers, drafts, etc. that are shared with the Administration AS WELL AS personal notes, logs, diaries maintained by the President. As far as the PRA is concerned, the word "mine" doesn't exist when it comes to Presidential records. The only applicable word is "ours" as in the National Archives. Note that the applicability of the PRA has nothing to do with the security classification of the material. Even documents related to the planning and execution of the yearly Easter Egg roll on the South Lawn are covered by the PRA.

Sure. But the PRA excludes "personal records" from the definition of presidential records. If something is a personal record, it's not a presidential record. Trump is arguing that these decisions are not reviewable. He is not basing the argument on any claim that the documents meet the criteria of "personal records" under 44 USC 2201. He's instead arguing that the matter is not properly before the court, and that no review is possible.

This is a thin reed. However, Trump's attorneys have some prior examples of where courts have declined to wade into the details over whether past Presidents have gotten it right when designating records as "personal" or "presidential." So they argue that the entire question is not within the court's purview.

I don't think their examples are particularly strong, so their argument is probably wrong. But it's important to recognize what their argument is. They're not claiming that these documents actually meet the statutory definition of "personal records," but that once the President has said they are, a court cannot review that determination.

https://www.documentcloud.org/documents/24478991-t...

But can either side request removal from this particular trial?

On what grounds? That she's making rulings that the government thinks are mistakes? Judges make mistakes all the time. I'm not a litigator, but my litigator friends tell some real horror stories about judges who completely, utterly, totally fail to understand the legal issues being presented to them.

Them's the breaks in litigation. That's why appeals exist - if you think the judge is making wrong decisions, you can raise that on appeal. You can't remove them from the case just because they're making mistakes.

You can't remove them from the case just because they're making mistakes.

But, aside from conflict of interest, I would think that is the only valid reason to remove a judge.

But I thought Jack Smith can file a complaint of incompetence with the 11ᵗʰ Circuit NOW, and they can rule that she must either recuse, or they will appoint a new judge for this case regardless.

Not if the complaint is based on the judge's decisions being wrong or bad. If the judge were legally incompetent - in the sense of being non compos mentis - you could file a claim based on that. But if you think she's just making very bad decisions, your redress is through appeal.

https://www.cadc.uscourts.gov/internet/home.nsf/Co...

But, aside from conflict of interest, I would think that is the only valid reason to remove a judge.

There are others. If she were showing up drunk, or naked, or engaging in other types of misconduct, you could ask for her to be removed. Or not performing her duties at all - if she just stopped showing up for work, or held motion calendar only once a quarter, she could be removed.

But you can't remove her from a case just because she's making legal rulings you think are wrong.

Quibble: It isn't that I think they're wrong. From what I've read in this thread, they simply are wrong because she is merging legal and factual rulings, confusing them, or otherwise doing it wrong. Regardless if it benefits either party.

On what grounds?

Stupidity.

Unfit to make coffee for a real judge.

Fingers caught in the dithering machine.

Oh, oh I know! Failure to respect and comply with the law.`

An experienced and confident judge would just have the government brief that issue. Schedule a hearing, tell them that you're concerned about how a criminal court can review a PRA choice if it's a jury question and the documents are classified, and have them respond. Cannon doesn't seem to be experienced or confident, so she's issued this weird order to try to smoke out the government's stance on this by having them write a jury instruction. Rather than a brief.

Yes, I'd rather read a brief from both sides any day than jury instructions. I'm still wondering what she is up to. It would be easy for me to rule though, the decisions are reviewable. In fact whether there was a decision made at all is reviewable. As for whether the jury can review the documents good question, maybe they can have someone review the documents and... I'm to groggy to think or write this... sorry. :)

I am getting better at one handed typing though. Thanks for the great answer

albaby1: So what? Under the Constitution, criminal defendants are entitled to a jury trial (unless they waive that right). Even if facts are obvious to the judge, it's the jury that has to decide factual questions.

Hang on. Isn't his argument here that the case should be dismissed based on the PRA?

And isn't this what Trump told a ghostwriter (and others present)?


STAFFER: I don't know, we'll, we'll have to see. Yeah, we'll have to try to—

TRUMP: Declassify it.

STAFFER: —figure out a-yeah.

TRUMP: See as president I could have declassified it.

STAFFER: Yeah. [Laughter]

TRUMP: Now I can’t, you know, but this is still a secret.

Hang on. Isn't his argument here that the case should be dismissed based on the PRA?

Yes. Trump is arguing that the PRA creates an issue at law that prevents the case from moving forward. Issues of law are decided by the judge - whether it’s a jury trial or not. So if the documents are “personal records” as a matter of law, because they are exempt from review, the judge can (and should) decide that question before the trial.

If the judge decides that the documents are not exempt from review, then they are back in play to serve as the basis for the crime that was alleged. But the body that conducts the review would be the jury, if that is a question of fact.

Many (most?) trials involve intertwined questions of fact and law. Depending on the posture of the case, sometimes one side can win on the law alone, while the other side needs to prove both their legal and factual argument.

Hope you're recovering from whatever procedure you had. Your clarity is fine. I'm also wondering.

Had carpal tunnel on the right hand. At post op yesterday my hand was a tomato with stitches. So ice packs, pain killers, and tough it out. Another 3-5 weeks and I get my hand back. No worries though, should be fine.

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