Today, it\u2019s time to go \u201cdown in the weeds\u201d. We’re talking about the legal motions in Jack Smith\u2019s national security case against Donald Trump.\u00a0\u00a0Before we go too far, here\u2019s the inevitable disclaimer.\u00a0\u00a0I\u2019m not a lawyer (though it did spend some time in law school).\u00a0\u00a0But I have spent a career discussing and teaching the law and legal methods.\u00a0\u00a0For the record, my \u201cadvanced degree\u201d is in education with a sports science emphasis.\u00a0\u00a0In short, I know what I\u2019m talking about, but don\u2019t take it to the bank, or to court.<\/p>\n\n\n\n
So let\u2019s 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 \u201ccriminal code\u201d of Federal law.<\/p>\n\n\n\n
This seems like a \u201cprima facie\u201d case.\u00a0\u00a0We all saw the pictures of the scattered documents in Trump\u2019s Mara Lago office. There were the stacks of boxes on the stage and in the \u201cgolden\u201d bathroom.\u00a0\u00a0There is clear testimony that Trump ordered his staff to hide the documents, obscure, and even delete video of the documents being moved.\u00a0\u00a0And then there\u2019s the \u201con tape\u201d admission when Trump was showing Mark Meadow\u2019s biographer documents that he not only said were classified, but that he wasn\u2019t allowed to display.\u00a0\u00a0<\/p>\n\n\n\n
That\u2019s the evidence,. It’s the \u201cfacts\u201d that Jack Smith\u2019s team will, perhaps, get to present to a jury of twelve citizens, Donald Trump\u2019s \u201cpeers\u201d in Fort Pierce, Florida.\u00a0\u00a0And, in the usual process, those jurors determine if the evidence shows \u201cbeyond a reasonable doubt\u201d, that Donald Trump knowingly violated Title 18 and should be convicted of multiple felonies.<\/p>\n\n\n\n
But this is Donald Trump, and the Federal District Court of Southern Florida, Fort Pierce Division.\u00a0\u00a0The newly appointed (by Trump) Judge handling the case is Aileen Cannon.\u00a0\u00a0You might remember her name.\u00a0\u00a0When the documents were first seized by the FBI, Judge Cannon ordered that each document be inspected by a \u201cFederal Special Master\u201d. That process was guaranteed to slow the trial process by many months.\u00a0\u00a0It took a Justice Department appeal to Cannon\u2019s \u201cbosses\u201d, the 11th<\/sup>\u00a0Circuit Court of Appeals, to get rid of the \u201cSpecial Master\u201d.\u00a0The Appellate Court ordered Cannon to move the trial forward in regular process; in fact, they did it twice.\u00a0\u00a0And that was just at the procedural motions stage.<\/p>\n\n\n\n By random chance, (or by hook or by crook) Judge Cannon was appointed to hear the actual trial case.\u00a0\u00a0And the Judge has, to this point, been very \u201csolicitous\u201d of the defense team\u2019s concerns. So much so, that it appears that she may be taking a side in this case.\u00a0\u00a0But the real crisis didn\u2019t come up until the past week.<\/p>\n\n\n\n The trial of Donald Trump is currently scheduled to begin in August.\u00a0\u00a0The 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.\u00a0\u00a0In fact, that\u2019s how Courts everywhere work.\u00a0\u00a0The Judge, with the \u201cadvice\u201d of opposing counsel, sets the legal \u201cparameters\u201d for the trial.\u00a0\u00a0It is the most important part of the job; the Judge sets the legal framework for the trial.\u00a0\u00a0<\/p>\n\n\n\n The Jury has a very separate role.\u00a0\u00a0Their job is to determine whether the facts, as presented in the evidence and testimony, reach the very high standard of \u201cbeyond a reasonable doubt\u201d (90%).\u00a0\u00a0That\u2019s not, by the way, \u201cbeyond all doubt\u201d (100%). But it is way greater than a civil case, where decisions are made by a \u201cpreponderance of the evidence\u201d (50% plus one).\u00a0\u00a0<\/p>\n\n\n\n Juries don\u2019t decide \u201cthe law\u201d.\u00a0\u00a0That\u2019s not what they know, and not what they are expected to understand.\u00a0\u00a0They 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.\u00a0\u00a0This is the clear delineation in any trial court in the United States. The judge determines the law, the jury determines the facts.\u00a0\u00a0That\u2019s how it works in Licking County Common Pleas Court, and how it\u2019s supposed to work in the Federal District Court.<\/p>\n\n\n\n That brings us to the current crisis in Fort Pierce. Judge Cannon, prematurely, asked the lawyers from both sides to look at \u201cJury Instructions\u201d (her laying out the law for the jurors to apply). Contrary to \u201cregular\u201d Federal process, she didn\u2019t \u201cjust\u201d apply the laws that the Department of Justice claims that Trump violated. She didn\u2019t just say in her proposed instructions: here\u2019s the Title 18 sections that the Government says Trump broke, here\u2019s the standard for violating those laws; you decide if he did. <\/p>\n\n\n\n Instead, in both versions of instructions she proposes, she brings in a whole different law.\u00a0\u00a0The Presidential Records Act is a series of instructions passed by Congress to determine what are \u201cpersonal papers\u201d of a President (former or present) and what are \u201cofficial records\u201d required to be turned over to the National Archives.\u00a0\u00a0The Presidential Records Act is a civil law, it has no criminal penalties attached to it.\u00a0\u00a0Violate the Presidential Records Act, and the \u201coutcome\u201d is the former President turns over the records to the archives.\u00a0\u00a0It\u2019s a \u201cYou are a bad former President, slap on the wrist, put the papers back,\u201d kind of thing.\u00a0<\/p>\n\n\n\n The Trump attorneys want to use the Presidential Records Act as a defense against the Federal charges.\u00a0They 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 \u201cpersonal papers\u201d. Therefore he didn\u2019t violate USC Title 18.<\/p>\n\n\n\n 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 \u201cthought\u201d they were his personal papers? Which law apples: the criminal statutes with jail sentences, or the Records Act \u2013 please turn the papers back in?<\/p>\n\n\n\n Don\u2019t get me wrong \u2013 it\u2019s 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\u2019t raise the Records Act in his indictment, doesn\u2019t mean they can\u2019t. The question isn\u2019t should the Records Act defense be raised, it\u2019s 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. <\/p>\n\n\n\n But Judge Cannon refuses to make that determination.\u00a0\u00a0She isn\u2019t saying that the jury should decide what the law means, the ultimate faux pas, at least not yet.\u00a0\u00a0What she is saying is that she will decide what the answer to this legal question, later.\u00a0\u00a0She will decide once the prosecution presents its case to the jury.\u00a0\u00a0And that\u2019s the problem that the Department of Justice and Jack Smith faces.<\/p>\n\n\n\n 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\u2019t even go to a jury and dismisses the charges, that\u2019s fine. Smith\u2019s team could then appeal her decision to the 11th<\/sup> Circuit, where it\u2019s more than likely that the Appellate Court would overturn her decision, and direct the case back for trial. <\/p>\n\n\n\n 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\u2019s totally different. The Fifth Amendment right against \u201cdouble jeopardy\u201d would then apply, \u201c\u2026nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb\u201d. <\/em>The Government, Jack Smith, would NOT be able to appeal that decision. The case is over, and Trump is \u201coff the hook\u201d once again.<\/p>\n\n\n\n So what other choice does Jack Smith have?\u00a0\u00a0He can go over Judge Cannon\u2019s head, and appeal her unwillingness to make the decision.\u00a0\u00a0He can file a \u201cwrit of mandamus\u201d with the 11th<\/sup>\u00a0Circuit, 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.\u00a0\u00a0Smith will ask that she does so before double jeopardy applies.\u00a0\u00a0His hope is that the 11th<\/sup>\u00a0Circuit would order Cannon to make the call. And then if she decides the Records Act applies, he can appeal back to the 11th<\/sup>\u00a0again, this time to throw out her decision.\u00a0\u00a0All of this to happen before a jury is selected and the trial actually begins.<\/p>\n\n\n\n We see the same kind of decision being made at the state level in Trump cases in both Georgia and New York.\u00a0\u00a0In Georgia, the Trump lawyers made a long presentation that charges violated Trump\u2019s First Amendment rights.\u00a0\u00a0After due deliberation, the judge ruled that didn\u2019t apply, at least to the charges as he sees them.\u00a0<\/p>\n\n\n\n \u00a0And 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\u2019t apply to that case either.\u00a0\u00a0Both of those cases moved onto towards trial.<\/p>\n\n\n\n Cannon doesn\u2019t want to decide. And that\u2019s what looks suspiciously like a judge who wants to \u201cput her thumb on the scale\u201d of justice. <\/p>\n\n\n\n Jack Smith should be asking for his \u201cwrit\u201d right now.<\/p>\n","protected":false},"excerpt":{"rendered":"Legal Process<\/h3>\n\n\n\n
Jury Instructions<\/h3>\n\n\n\n
Appeal<\/h3>\n\n\n\n
Make the Call<\/h3>\n\n\n\n
Write the Writ<\/h3>\n\n\n\n