In a court filing, the special counsel Jack Smith said that the judge in Donald Trump’s criminal case over his retention of classified information was relying on a “fundamentally flawed legal premise” when asking lawyers to consider whether the former president can claim immunity under federal records law.
Smith also said that if the judge, Aileen Cannon, ruled Trump can indeed cite the Presidential Records Act (PRA) in his defence, he would appeal to a higher court, seeking an order for her to apply the law correctly and, implicitly, her removal from the case.
It all raised the possibility of the trial being pushed back even further, beyond the November election in which Trump will be the Republican nominee for president.
Trump faces 40 charges arising from his retention of classified information after leaving the White House and alleged obstruction of attempts to recover such records. He has pleaded not guilty.
Cannon, a Trump appointee who has moved slowly on the case, recently asked lawyers to consider two scenarios in which jurors might be told Trump can, as his lawyers claim, invoke the PRA in his defence.
Smith’s late-Tuesday filing said: “Both scenarios rest on an unstated and fundamentally flawed legal premise – namely, that the PRA, and in particular its distinction between ‘personal’ and ‘presidential’ records, determines whether a former president is ‘authorized’ under the Espionage Act [Section 793] to possess highly classified documents and store them in an un-secure facility, despite contrary rules in executive order 13526, which governs the possession and storage of classified information.
“That legal premise is wrong, and a jury instruction for Section 793 that reflects that premise would distort the trial. 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 authorised under the Espionage Act, and the PRA should play no role in the jury instructions on the elements of Section 793. Indeed, based on the current record, the PRA should not play any role at trial at all.”
In their own filing, lawyers for Trump restated their case, saying: “Based on the PRA, it is simply not the case – as a matter of law – that President Trump was ‘unauthorised’ to possess the documents in question under” Section 793 of the Espionage Act.
The Florida-based classified information trial is not Trump’s only source of legal jeopardy.
Quite apart from civil tax fraud and defamation cases in which he has struggled to pay multimillion-dollar bonds, Trump faces 48 other criminal charges: 34 over hush-money payments in New York, 10 in Georgia over election subversion, and four federal election subversion charges also brought by Smith.
In each case Trump’s lawyers have pursued delaying tactics, seeking to put off trials until after the election or avoid them altogether.
In the New York case, trial is due to begin on 15 April.
If re-elected president, Trump could have the federal charges dismissed or award himself a pardon. He could not have the state charges dismissed or pardoned.
Smith’s filing also said that if Cannon does decide Trump can cite the PRA in his defence, Smith would be empowered in his appeal to a higher court to seek a writ of mandamus.
The Legal Information Institute at Cornell University defines mandamus as “an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.
“According to the US Department of Justice, ‘Mandamus is an extraordinary remedy, which should only be used in exceptional circumstances of peculiar emergency or public importance.’”
In effect, the former White House counsel John W Dean noted, Smith had shown readiness to “remove Cannon if she gets this wrong”.
Writing for CNN, the former White House ethics chief Norm Eisen and two co-authors agreed with Dean.
If Cannon “clings to even a few of these wrong decisions”, the piece said, “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 … is lawless enough that, unless she reverses course, he may have no other choice.”
