U.S. District Judge Aileen Cannon denied Donald Trump’s motion to dismiss the classified documents case based on the Presidential Records Act. It was the only logical conclusion she could have reached. But her order denying Trump’s motion, while ostensibly a win for special counsel Jack Smith at this pretrial stage, still leaves plenty of room for mischief down the road.
That’s because Cannon also denied Smith’s request to rule on jury instructions. And the reason Smith wanted her to do so was because earlier she had floated the notion of using a fringe legal view, based on the Presidential Records Act, in those instructions. So her ruling against Trump based on that act — a civil law that has no relevance to the criminal charges — could signal that she won’t inject it into a wacky jury instruction. But she left that possibility open for another day.
In a court filing ahead of Cannon’s ruling, Smith said that he wanted her to clarify her position on the instructions, so that he could appeal her before trial if she adhered to that fringe view, which he noted rested on a flawed legal premise.
But in her Thursday order, Cannon cast Smith’s request as outlandish, deeming it “unprecedented and unjust.” That might be a fair characterization had he made it out of thin air. But he made it in response to her strange previous order, in which she requested proposed jury instructions rooted in what one might call an “unprecedented and unjust” legal view. So without that context for how we arrived at this point, the judge’s characterization is misleading.
Cannon ended her order by stating, “As always, any party remains free to avail itself of whatever appellate options it sees fit to invoke, as permitted by law.” But without a ruling on the jury instructions, it’s unclear what, if anything, Smith will do about it right now. He may decide to take the win (such as it is) and live to fight another day.
This whole episode foreshadows what will undoubtedly be fights to come. This is just one issue of many that have and will come up in the case — one for which Cannon still hasn’t set a firm trial date at which any jury instructions would even be used.
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