April 3 (UPI) -- Special prosecutor Jack Smith says the judge in the
classified documents case against Donald Trump has
issued an order that would distort the trial.
Smith told U.S. District Judge Aileen Cannon in a court filing Tuesday
that her order for the prosecution and defense to propose jury instructions is
based on a "fundamentally flawed legal premise."
The premise Smith is referring to is an interpretation of
the Presidential Records Act argued by Trump's defense. The former president's
attorneys argued that he had the authority to take and keep classified
documents after he left the White House. Cannon ordered the prosecution and
defense to offer proposals based on the concept that Trump's argument is valid.
"That legal premise is wrong, and a jury instruction
for Section 793 that reflects that premise would distort the trial," Smith
writes. "The PRA's distinction between personal and presidential records
has no bearing on whether a former president's possession of documents
containing national defense information is authorized under the Espionage Act,
and the PRA should play no role in the jury instructions on the elements of
Section 793."
Smith argues that the Presidential Records Act does not
apply because the charges against Trump relate to actions taken after he was
president.
Smith also expresses concern that Cannon may wait to make
a decision after jeopardy attaches. If she determines at that point that Trump
is allowed to possess the documents in question, the case would end and the
government would not have the ability to appeal. It would also not be allowed
to try Trump again due to double jeopardy.
"Whatever the court decides, it must resolve these
crucial threshold legal questions promptly," Smith says. "The failure
to do so would improperly jeopardize the government's right to a fair trial and
deprive it of its right to seek appellate review."
Two scenarios are meant to be under consideration under
Cannon's order.
The first is that the Espionage Act allows a former
president to possess any document that a jury determines is a personal record,
as defined by the Presidential Records Act. Jurors would be instructed to make
those determinations.
The second is that a president can remove any document
from the White House when he leaves office, and that those records are his
personal records. This would effectively end the prosecution if adopted. Smith
says the prosecution should be entitled to a prompt review in the court of
appeals in that case.
The filing reveals that Trump was contacted by Judicial
Watch, a conservative nonprofit group. During conversations between Trump, his
attorneys and the group's president as late as February 2022, Trump's team
acknowledged that the documents in question were presidential, not personal.
Trump faces 32 charges for mishandling classified
documents, including national security secrets.
-United Press International
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