Editor’s Note: Norman Eisen, who served as counsel to House Democrats in the first Trump impeachment, is a senior fellow at Brookings. E. Danya Perry, a founding partner of Perry Guha LLP, formerly served as a federal prosecutor and chief of investigations for New York State’s Moreland Commission on Public Corruption. Joshua Kolb served as law clerk for the Senate Judiciary Committee. The views expressed in this commentary are their own. View more opinion at CNN.
On Tuesday, special counsel Jack Smith threw down the gauntlet in an extraordinary filing in the Mar-a-Lago prosecution, the case that centers around former President Donald Trump’s retention of classified documents and his resistance to government attempts to recover them from his Mar-a-Lago estate.
Smith warned Judge Aileen Cannon that her approach to the law governing the handling of presidential records — and so Donald Trump’s culpability in the case — was “fundamentally flawed” and threatened to seek rare pretrial review by the 11th US Circuit of Appeals. (Trump denies all wrongdoing.)
Cannon is headed for the most trouble she has faced since that 11th Circuit reversed her twice in her original meddling in the government’s pre-indictment investigation. If she does not course-correct, she’s headed for another shellacking by the circuit – and possible removal from the case.
As a threshold matter we should be clear that there are alternative explanations for her pattern of decisions favoring Trump at the expense of the law.
Some analysts believe she is acting out of bias for a president who appointed her. But she had a good reputation before this case and we cannot rule out other explanations for her bending over backwards (and bending the law) to appear fair to Trump.
But whatever the explanation, the fresh threat from Smith came after she got herself into a tangle when she ordered the parties to propose two versions of instructions for a jury on how to apply the Presidential Records Act (PRA) when the case goes to trial. That statute outlines the parameters between a president’s official and personal records, and sets up processes for how official documents are preserved.
Cannon provided the parties with two scenarios for the divergent jury instructions that assumed legal conclusions about the PRA while simultaneously indicating that she had not made up her mind about which interpretation to apply and reserved the right to entertain counterarguments. She then asked both sides to fashion jury instructions based upon these two imaginary worlds.
We have never seen anything like this before in our collective half-century of legal practice. Judges are supposed to decide the law and to order parties accordingly, not invent fanciful alternative realities for everyone to react to.
Putting that to the side, though, as Smith’s new response makes crystal clear, Cannon’s order suffered from an even more fundamental problem: Both options rest on badly misconceived assumptions about the law.
Cannon’s first scenario would allow the jury to make a factual determination about whether a former president deemed a record to be personal or official under the PRA. That is nonsensical – presidents are not allowed to designate official records as personal ones, so there is no factual issue for a jury to resolve.
A different set of laws govern the classification process and the rules for handling highly sensitive classified documents — not the PRA. They include Executive Order 13526. One of the authors of this column (Eisen) helped write that executive order. The 11th Circuit has already established that those rules fully apply to former presidents.
Cannon seems to think that the PRA somehow supersedes the executive order and the rest of federal law pertaining to the handling of classified materials. It does not. On the contrary, the PRA defines “personal records” as “all documentary materials … of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.” That cannot possibly include highly classified battle plans, nuclear secrets and the other official documents at issue in this criminal prosecution.
That rules out Cannon’s first hypothetical. But as Smith points out in his filing, the second alternative is just as bad. She made up a legal standard, asking both sides to assume that Trump could have deemed a record personal by simply not including it with the records transmitted to the National Archives and Records Administration at the end of his term. If this were true, the mere fact that Trump took the documents with him from the White House would inherently turn them into personal records.
Of course, Trump leaped at this interpretation, fashioning proposed jury instructions that would inevitably result in his acquittal. But, as Smith noted, this approach has no basis in the law — or the facts. Even Trump himself does not seem to have considered classified documents personal after he left the White House, as evidenced in an audio recording CNN obtained last year in which Trump, during a conversation at his Bedminster, New Jersey, estate in 2021, discussed documents remaining classified even though he took them with him upon leaving office. Smith hits this point hard, arguing that Trump’s position that records are personal was “invented” when the controversy over the documents began to emerge in February 2022, over a year after Trump left the White House.
Importantly, Smith asked Cannon to let both parties know “promptly” how she viewed the law. If she ultimately embraces the legal interpretation articulated in her proposed scenarios, Smith indicated he would strongly consider immediate appellate review. That shows how seriously Smith views this issue and the fundamental error Cannon would be making.
Nor is all this an isolated mistake by Cannon. We are, for example, still waiting for the resolution of her baffling and potentially dangerous decision to release the identities of two dozen possible government witnesses. Smith has already taken the extraordinary step of asking Cannon to reconsider, pointing out that she made a clear error by applying the wrong legal standard and ignored the harmful consequences of such a disclosure.
All of this comes after her two prior reversals by the 11th Circuit, which slammed Cannon’s professed view that Trump deserves special treatment given his status as a former president. The conservative 11th Circuit lambasted Cannon for “carv[ing] out an unprecedented exception in our law for former presidents.” But even now, Cannon appears to be continuing to confer extra legal considerations for the former president.
In the 11th Circuit, under rare circumstances, a judge can be removed from a case if their conduct creates “the appearance of impropriety or a lack of impartiality in the mind of a reasonable member of the public.” She still has time to rectify this — by, for example, abandoning these incorrect jury instructions or granting Smith’s motion to reconsider revealing witnesses’ identities.
But if she doesn’t, and clings to even a few of these wrong decisions, Smith would be entitled to seek the review he threatens by the circuit and her removal. Ejecting her from the case would be extremely unusual and Smith does not mention seeking it in his papers. But neither does he rule it out, and Cannon’s reasoning on the jury instructions and on exposing witnesses is lawless enough that, unless she reverses course, he may have no other choice.