In the Weeds
Today, it’s time to go “down in the weeds”. We’re talking about the legal motions in Jack Smith’s national security case against Donald Trump. Before we go too far, here’s the inevitable disclaimer. I’m not a lawyer (though it did spend some time in law school). But I have spent a career discussing and teaching the law and legal methods. For the record, my “advanced degree” is in education with a sports science emphasis. In short, I know what I’m talking about, but don’t take it to the bank, or to court.
So let’s look at the charges. Jack Smith and the Department of Justice legal team charged Donald Trump with multiple counts of illegal possession and handling of national security documents. In addition, they charged Trump with obstruction of a national security investigation and tampering with evidence. All of these are under Title 18 of the US Code, the “criminal code” of Federal law.
Prima Facie Case
This seems like a “prima facie” case. We all saw the pictures of the scattered documents in Trump’s Mara Lago office. There were the stacks of boxes on the stage and in the “golden” bathroom. There is clear testimony that Trump ordered his staff to hide the documents, obscure, and even delete video of the documents being moved. And then there’s the “on tape” admission when Trump was showing Mark Meadow’s biographer documents that he not only said were classified, but that he wasn’t allowed to display.
That’s the evidence,. It’s the “facts” that Jack Smith’s team will, perhaps, get to present to a jury of twelve citizens, Donald Trump’s “peers” in Fort Pierce, Florida. And, in the usual process, those jurors determine if the evidence shows “beyond a reasonable doubt”, that Donald Trump knowingly violated Title 18 and should be convicted of multiple felonies.
Fort Pierce
But this is Donald Trump, and the Federal District Court of Southern Florida, Fort Pierce Division. The newly appointed (by Trump) Judge handling the case is Aileen Cannon. You might remember her name. When the documents were first seized by the FBI, Judge Cannon ordered that each document be inspected by a “Federal Special Master”. That process was guaranteed to slow the trial process by many months. It took a Justice Department appeal to Cannon’s “bosses”, the 11th Circuit Court of Appeals, to get rid of the “Special Master”. The Appellate Court ordered Cannon to move the trial forward in regular process; in fact, they did it twice. And that was just at the procedural motions stage.
By random chance, (or by hook or by crook) Judge Cannon was appointed to hear the actual trial case. And the Judge has, to this point, been very “solicitous” of the defense team’s concerns. So much so, that it appears that she may be taking a side in this case. But the real crisis didn’t come up until the past week.
Legal Process
The trial of Donald Trump is currently scheduled to begin in August. The usual process is a series of Court orders which set the parameters of the charges. Those orders determine the evidence that comes into the Court, and the legal process that will be followed. In fact, that’s how Courts everywhere work. The Judge, with the “advice” of opposing counsel, sets the legal “parameters” for the trial. It is the most important part of the job; the Judge sets the legal framework for the trial.
The Jury has a very separate role. Their job is to determine whether the facts, as presented in the evidence and testimony, reach the very high standard of “beyond a reasonable doubt” (90%). That’s not, by the way, “beyond all doubt” (100%). But it is way greater than a civil case, where decisions are made by a “preponderance of the evidence” (50% plus one).
Juries don’t decide “the law”. That’s not what they know, and not what they are expected to understand. They receive instructions from the Judge on the law, and then apply those instructions (what the law means) to the facts they get from the trial. This is the clear delineation in any trial court in the United States. The judge determines the law, the jury determines the facts. That’s how it works in Licking County Common Pleas Court, and how it’s supposed to work in the Federal District Court.
Jury Instructions
That brings us to the current crisis in Fort Pierce. Judge Cannon, prematurely, asked the lawyers from both sides to look at “Jury Instructions” (her laying out the law for the jurors to apply). Contrary to “regular” Federal process, she didn’t “just” apply the laws that the Department of Justice claims that Trump violated. She didn’t just say in her proposed instructions: here’s the Title 18 sections that the Government says Trump broke, here’s the standard for violating those laws; you decide if he did.
Instead, in both versions of instructions she proposes, she brings in a whole different law. The Presidential Records Act is a series of instructions passed by Congress to determine what are “personal papers” of a President (former or present) and what are “official records” required to be turned over to the National Archives. The Presidential Records Act is a civil law, it has no criminal penalties attached to it. Violate the Presidential Records Act, and the “outcome” is the former President turns over the records to the archives. It’s a “You are a bad former President, slap on the wrist, put the papers back,” kind of thing.
The Trump attorneys want to use the Presidential Records Act as a defense against the Federal charges. They say that Trump considered all of the National Security documents he took out of the White House and stored on the stage and in the bathroom as his “personal papers”. Therefore he didn’t violate USC Title 18.
Appeal
So the questions is one of law. Does the Presidential Records Act absolve Trump of responsibility for having all of those classified documents? Can Trump claim that he “thought” they were his personal papers? Which law apples: the criminal statutes with jail sentences, or the Records Act – please turn the papers back in?
Don’t get me wrong – it’s exactly the kind of issue the Trump attorneys should be raising. They are doing everything (legally) to get their client out of trouble. Just because Jack Smith didn’t raise the Records Act in his indictment, doesn’t mean they can’t. The question isn’t should the Records Act defense be raised, it’s who should decide this LEGAL question. The answer is the Right Honorable, Federal Court of the Southern District of Florida, Fort Pierce Division, Judge Aileen Cannon; not the twelve jurors. They are determiners of fact, not law.
But Judge Cannon refuses to make that determination. She isn’t saying that the jury should decide what the law means, the ultimate faux pas, at least not yet. What she is saying is that she will decide what the answer to this legal question, later. She will decide once the prosecution presents its case to the jury. And that’s the problem that the Department of Justice and Jack Smith faces.
If Judge Cannon were to say tomorrow that the Presidential Records Act is a legitimate and compelling defense, so much so that the case shouldn’t even go to a jury and dismisses the charges, that’s fine. Smith’s team could then appeal her decision to the 11th Circuit, where it’s more than likely that the Appellate Court would overturn her decision, and direct the case back for trial.
Make the Call
But Judge Cannon wants to wait for a jury to be chosen, and the trial to begin. And if at that point, she rules that the Presidential Record Act is a compelling defense and dismisses the charges, then it’s totally different. The Fifth Amendment right against “double jeopardy” would then apply, “…nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”. The Government, Jack Smith, would NOT be able to appeal that decision. The case is over, and Trump is “off the hook” once again.
So what other choice does Jack Smith have? He can go over Judge Cannon’s head, and appeal her unwillingness to make the decision. He can file a “writ of mandamus” with the 11th Circuit, demanding that they order Judge Cannon to make the legal judgment that she will be required to make anyway at some point in the process. Smith will ask that she does so before double jeopardy applies. His hope is that the 11th Circuit would order Cannon to make the call. And then if she decides the Records Act applies, he can appeal back to the 11th again, this time to throw out her decision. All of this to happen before a jury is selected and the trial actually begins.
Write the Writ
We see the same kind of decision being made at the state level in Trump cases in both Georgia and New York. In Georgia, the Trump lawyers made a long presentation that charges violated Trump’s First Amendment rights. After due deliberation, the judge ruled that didn’t apply, at least to the charges as he sees them.
And in New York, the judge determined that the outcome of the US Supreme Court case that could grant Trump immunity for actions while he was President doesn’t apply to that case either. Both of those cases moved onto towards trial.
Cannon doesn’t want to decide. And that’s what looks suspiciously like a judge who wants to “put her thumb on the scale” of justice.
Jack Smith should be asking for his “writ” right now.
