The MAGA-friendly federal judge who keeps siding with Donald Trump in his Mar-a-Lago classified records case has forced prosecutors to make a stark choice: allow jurors to see a huge trove of national secrets or let him go.
U.S. District Judge Aileen M. Cannon’s ultimatum Monday night came as a surprise twist in what could have been a simple order; one merely asking federal prosecutors and Trump’s lawyers for proposed jury instructions at the upcoming trial.
But as she has done repeatedly, Cannon used this otherwise innocuous legal step as yet another way to swing the case wildly in favor of the man who appointed her while he was president.
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Department of Justice Special Counsel Jack Smith must now choose whether to allow jurors at the upcoming criminal trial to peruse the many classified records found at the former president’s South Florida mansion or give jurors instructions that would effectively order them to acquit him.
Alternatively, Smith could appeal to the Eleventh Circuit Court of Appeals, where more experienced judges have already overturned Cannon and reined her in. But doing that will only further delay a trial that’s at least three months behind schedule, entirely by the judge’s own design. (She froze the investigation and tried to slow-roll document review until the appellate court forced her to stop.)
Trump and two lackeys were indicted last year for hoarding classified documents at the South Florida oceanside mansion, which doubles as a social club that’s become a mandatory stop for aspiring Republican politicians. Trump is fighting off 39 felony counts for keeping national defense information without authorization and trying to cover it up.
In recent weeks, Trump has tried to justify his inexplicable hiding of documents by asserting that everything FBI agents found—ranging from proposed war plans against Iran to what appears to be some kind of nuclear information—were actually his “personal” files, and therefore he could do with them whatever he pleased. He also claimed the country’s national security laws are “too vague” to be used against him anyway.
Last Thursday, Cannon declined to dismiss the case entirely on that vagueness argument and pushed aside that question for now, a move that was incorrectly read by some as a victory for Smith and his band of special federal prosecutors.
In retrospect just four days later, that decision was something of a boxing feint used to prep a hard punch with Monday’s ultimatum.
In coming up with how to explain the nation’s complex national security restrictions to jurors who will ultimately determine whether Trump is guilty, Cannon came up with a scheme that would make federal prosecutors the most uncomfortable possible.
Cannon’s evening order alerted federal prosecutors and Trump’s legal team that they “must engage with the following competing scenarios” when considering whether Trump can be charged with “unauthorized possession”: Either “a jury is permitted to examine” every record a former president swipes and claims as “personal” to determine whether it is, or jurors must be told that “a president has sole authority… to categorize records as personal or presidential during his/her presidency.”
The first option would require Smith to allow any of the randomly called potential jurors in this rural stretch of South Florida to suddenly have access to what prosecutors have described as extremely alarming national secrets. The second option would essentially force jurors to acquit the former president of wrongdoing, given that they’d be told he had unquestionable authority to assert personal ownership over any government document within his reach—a self-justifying rule outside of anyone’s review.
That second option is as stark as it is strange. In her two-page ruling, Cannon essentially proposed a new version of the law without the typical lengthy judicial order to back it up.
Option Two merely appears as a proposed jury instruction that would say: “A president has sole authority under the [Presidential Records Act] 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.”
Cannon goes on to say that the Presidential Records Act is unclear about how to allow a president to make that kind of determination—even though, ironically, the 1978 law was passed in the wake of President Richard Nixon’s Watergate scandal as a means to ensure that White House records are considered U.S. government property that should be overseen by responsible historians and librarians at the National Archives.
“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,” she wrote.
Cannon’s reading of that federal law would hand extensive authority to any president. But more importantly, it would give Trump exactly what he wants: the ability to give himself the final word.
