Judge Sent ‘Ominous’ Warning to Jack Smith in Trump Documents Case, Says Ex-Prosecutor

A former federal prosecutor said that a Florida-based federal judge’s recent ruling to not dismiss former President Donald Trump’s classified documents case is actually a win for the former president.

In the past week, a number of legal analysts with mainstream media outlets, such as Mr. Kirschner, have been critical of Judge Aileen Cannon’s recent move to offer jury instructions to both the prosecutors and President Trump’s team, asking them to submit competing jury instructions based on hypothetical scenarios under the Presidential Records Act (PRA).

The former president’s team has argued that the act allows him to designate classified materials as his own property, which they have argued renders the government’s charges against him as moot. But Jack Smith, the special counsel prosecuting the case, has said that the Presidential Records Act doesn’t apply in this case and recently filed a brief that appeared to criticize the judge over her recent decisions.

On Thursday, Judge Cannon refused to throw out the classified documents prosecution and rejected the ex-president’s arguments that the act permits him to retain the records after he left the White House.

“The Court’s Order soliciting preliminary draft instructions on certain counts should not be misconstrued as declaring a final definition on any essential element or asserted defense in this case,” she wrote. “Nor should it be interpreted as anything other than what it was: a genuine attempt, in the context of the upcoming trial, to better understand the parties’ competing positions and the questions to be submitted to the jury in this complex case of first impression.”

But Glenn Kirschner, a former prosecutor who writes columns for MSNBC and has been a vocal critic of President Trump over the years, interpreted Judge Cannon’s ruling to say that she will wait until a jury is sworn in to provide instructions regarding whether the former president had the right to possess the classified documents under the Presidential Records Act. If that happens, he said Mr. Smith will not be able to appeal.

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Mr. Kirschner interpreted Judge Cannon’s ruling as to say, “I will wait until after the jury is sworn. I will wait until after evidence has been presented. I will wait until after Donald Trump has put on his defenses.”

He then added that Judge Cannon’s jury instruction regarding “how the Presidential Records Act means the jury must find Donald Trump not guilty. And guess what, Jack? You can’t appeal it at that point. Game over,’” he said in a recent YouTube interview, reported Newsweek. The order, he claimed, is “extremely ominous” for prosecutors in the case.

Another former federal prosecutor, David Weinstein, told Political in a report published Friday that regarding the jury instructions to both President Trump and prosecutors: “I am not a conspiracy theorist, and I don’t want to say this is being done to intentionally delay the way that the case is moving along, but the longer this drags out, it seems that way.”

Meanwhile, a former Massachusetts-based federal judge who also is a critic of the former president and Judge Cannon told Politico that the Smith team should move to disqualify Judge Cannon.

“The government could be without recourse after a trial begins … I don’t even know why they indulged her … I think they need to stop playing games and move to disqualify her,” Nancy Gertner told the outlet.

President Trump is facing dozens of felony counts related to the retention of classified documents, according to an indictment last year. Authorities say the records were stowed in dozens of boxes haphazardly warehoused at Mar-a-Lago, which was searched by the FBI in August 2022 in an escalation of the investigation.

The former president has pleaded not guilty to the charges, often arguing they are part of a widespread government effort to prevent him from winning the presidency in 2024. He’s currently the presumptive Republican presidential nominee, and some polls show he is neck-in-neck with President Joe Biden in multiple battleground states with just seven months to go before the November contest.

The documents case was initially set for trial on May 20, but Judge Cannon heard arguments last month on a new date without immediately setting one. Both sides have said they could be ready for trial this summer, though defense lawyers have also said President Trump should not be forced to stand trial while the election is pending.

Earlier this week, Mr. Smith’s team filed an unusually critical in the case, saying that witnesses interviews by prosecutors did not “[hear] Trump say that he was designating records as personal or that, at the time he caused the transfer of boxes to Mar-a-Lago, he believed that his removal of records amounted to designating them as personal under the PRA.”

“To the contrary, every witness who was asked this question had never heard such a thing,” they added. President Trump has said on social media that he had the power, as president, to declassify documents for his own personal property.

The Associated Press contributed to this report.