Aileen Cannon Sent 'Extremely Ominous' Message to Jack Smith: Ex-Prosecutor

U.S. District Judge Aileen Cannon sent an "extremely ominous" message to special counsel Jack Smith in a new filing in Donald Trump's classified documents case, former federal prosecutor Glenn Kirschner says.

On Thursday, Cannon, who is presiding over the Florida case, denied a motion by the former president to dismiss the case on the ground that the papers are considered personal under the Presidential Records Act.

Trump, the GOP's presumptive 2024 presidential nominee, is accused of mishandling presidential records by keeping them after leaving office and then obstructing the government's efforts to retrieve them. He has pleaded not guilty to all charges and says the case brought by Smith is politically motivated.

Kirschner, who has been a vocal critic of Trump, reacted to Cannon's recent ruling on Brian Tyler Cohen's YouTube show The Legal Breakdown on Thursday evening.

Kirschner said that Cannon wrote something that is "extremely ominous" in Thursday's ruling relating to a prior filing from Smith.

"Remember, a couple of days ago Jack Smith filed a scorched-earth filing in this case saying, Wait a minute, Judge Cannon, you're proposing to give two jury instructions and those jury instructions say the Presidential Records Act means that Donald Trump is essentially not guilty of the charges."

He continued: "And Jack Smith responded by saying that's not an accurate formulation of the law. And if you give those jury instructions, you will be orchestrating an acquittal, you'll be orchestrating a not guilty verdict, and you'll be doing it at a time after the trial has already started, after the jury has sworn in, after jeopardy attaches. You'll be doing it at a time when the prosecutors couldn't appeal you if you dismiss the case."

Newsweek reached out to a Trump spokesperson via email and the United States Courts website via online form for comment.

Last month, Cannon asked Smith's team and Trump's lawyers to file jury instructions based on two hypothetical scenarios.

In the first scenario Cannon required, both parties would outline for a jury's consideration whether a record retained by a former president at the end of his time in office is his personal property and whether the government had proved beyond a reasonable doubt that "it is personal or presidential using the definitions set forth" in the Presidential Records Act (PRA).

The second scenario required by Cannon would lay out the arguments in which a president "has sole authority under the PRA to categorize records as personal or presidential" during his presidency.

Cannon wrote in her ruling on Thursday: "Separately, to the extent the Special Counsel demands an anticipatory finalization of jury instructions prior to trial, prior to a charge conference, and prior to the presentation of trial defenses and evidence, the Court declines that demand as unprecedented and unjust."

She added that the court's order to ask for preliminary draft instructions on certain counts should not be interpreted as anything other than "a genuine attempt, in the context of the upcoming trial, to better understand the parties' competing positions."

Kirschner interpreted Cannon's words to mean: "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."

"And then: 'I still may give that lawless jury instruction about 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.

Kirschner added: "This is the most mind-blowing potential abusive judicial discretion imaginable."

Update 4/5/24, 12:07 p.m. ET: This story has been updated with additional information and background.