Washington — Special counsel Jack Smith urged a federal judge to keep a presidential record-keeping law out of instructions that would be provided to the jury in the classified documents case against former President Donald Trump, according to court documents filed by Smith’s team Tuesday evening. Prosecutors warned that including the law in the instructions risked compromising the proceedings, and said they would appeal the judge’s decision if she ruled against them.
Last month, Aileen Cannon, United States District Court Judge, which is overseeing the case in Florida, has asked Smith and Trump’s legal teams to file jury instructions based on two hypothetical scenarios: In one, the president has the power, under the Presidential Records Act ( PRA), to classify all documents as personal. In that scenario, Cannon wrote that “neither a court nor a jury” would have the opportunity to review the decision, a finding that could overturn much of the special counsel’s case against Trump.
In the other, the jury would be able to review a record kept by a former president and conclude that it was “personal or presidential,” under the PRA. In this scenario, it is possible that jurors will discover that certain official documents were misused.
Federal prosecutors rejected both proposals and wrote Tuesday that the PRA – a 1978 law that manages the retention of White House documents produced during each presidency – “should play no role at trial,” arguing that Trump’s alleged mishandling of classified files occurred after his presidency ended.
Trump and Smith filed separate proposals for jury instructions in the case on Tuesday, although a trial date has not yet been set.
Prosecutors said Tuesday that Cannon’s two hypothetical scenarios “rely on an unstated and fundamentally flawed legal premise.” Any jury instruction that included the PRA risked “distorting the trial,” they said.
Instead, the special counsel suggested that jurors should only have to determine three elements of the case that boil down to whether Trump deliberately withheld national defense information without federal government authorization.
Smith’s team asked that if the judge chooses to include language regarding the PRA, she give them enough time to appeal the case in higher courts before trial.
The former president’s legal team took the opposite view, writing that Cannon “correctly stated the law” when she suggested the jury instruction that would have granted Trump much broader power under the PRA.
“If this case is presented to a jury – which it should not be – the jury would be forced to resolve factual issues relating not only to the PRA categorizations, but also to the presumed classification status of the documents,” the court argued. Trump’s defense team in his case.
In their own proposed jury instructions, Trump’s legal team suggested Cannon tell jurors that Trump was allowed access to classified files during his presidency and that some precedent allowed former presidents to access certain documents.
The special prosecutor charged Trump in a 40-count indictment that includes 32 alleged violations of a national security law that prohibits the mishandling of national defense information. The former president is also accused of engaging in an obstruction scheme in an alleged attempt to thwart federal investigators as they probed his possession of documents bearing classified markings. The FBI ultimately recovered more than 300 sensitive government documents from Trump’s Mar-a-Lago residence that prosecutors accused him of illegally keeping.
Trump has pleaded not guilty to all charges and has denied any wrongdoing.
The brief filed Tuesday evening by the special prosecutor argued that the question of presidential and private records under the PRA is not a question for a jury because it does not apply to Trump’s alleged conduct. Instead, prosecutors said it was a question of law that should be left to the judge.
Trump’s legal team has filed a number of motions to dismiss the cases against him, including one on the grounds that the PRA granted Trump “unchecked discretion” over classified records.
“President Trump was still President of the United States when, for example, many of the documents at issue were packaged (presumably by GSA), transported, and delivered to Mar-A-Lago,” they wrote in a court filing filed in February. .
The former president’s lawyers also argued that the PRA “prevents judicial review” of a president’s record-keeping, saying the court lacks jurisdiction over the matter, language that was reflected in Cannon’s order seeking comment on the proposed jury instructions.
Smith’s team, however, pushed back on its responses to the court, writing that the more than 300 documents with classified markings recovered from Trump “are unquestionably presidential and not personal.”
“Trump was not authorized to have classified documents at all,” prosecutors said.
The federal investigation into Trump’s handling of classified documents follows a months-long effort by federal officials to collect what they considered to be missing documents. Investigators ultimately executed a search warrant at his Florida residence and club, Mar-a-Lago, in August 2022, after the former president allegedly failed to fully respond to a grand jury subpoena.
In Tuesday’s filing, Smith’s team pushed back again, alleging that Trump’s use of the PRA — namely the assertion that he had the authority to declare certain government documents as personal in nature — had was “invented” as a “fictitious” defense for his alleged conduct. only after the federal investigation began. The special counsel said neither communications with his defense team throughout the investigation nor testimony corroborated Trump’s claims.
Prosecutors revealed that during the grand jury investigation, the special prosecutor’s office interviewed people close to the former president, including his chiefs of staff and senior White House lawyers.
“Not a single person had heard Trump say that he was designating files as personal or that, at the time he caused the boxes to be transferred to Mar-a-Lago, he thought his deletion of the files was tantamount to designating them as personal under the law. PRA”, according to the special prosecutor. “On the contrary, all the witnesses who were asked this question have never heard such a thing.”
However, in response to Cannon’s order, Trump’s lawyers reiterated their assertion that the former president was immune from prosecution under the PRA.
“There is no reason for the Office of Special Counsel, this Court, or a jury to question the PRA categorizations specific to President Trump’s documents.”
Cannon has yet to rule on any of Trump’s motions to dismiss the indictment, and the former president’s legal team again urged her Tuesday to rule in his favor. Two of the former president’s aides, Walt Nauta and Carlos de Oliveira, also face charges in the case and have filed their own motions, which also remain unanswered. Nauta and de Oliveira have pleaded not guilty to allegations that they worked with the former president to obstruct the federal investigation.
The judge has not yet set a trial date in the case – originally scheduled for late May – and has not issued any orders related to a request by Smith to reconsider a decision related to the names of protected witnesses . She held a hearing on both issues on March 1.
Trump had initially argued that a trial should not happen before the fall election, but acknowledged that in August it would be feasible, if the judge decided to proceed. The special counsel insisted that the trial begin in July, a proposal that appears less likely to pass, since Cannon’s docket still contains several unresolved motions.
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