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Legal experts are diving in to discuss the meaning behind the recent order from Judge Aileen Cannon in former President Donald Trump's classified document case and what it means for the 2024 White House hopeful's trial.
Cannon is overseeing the presumptive Republican nominees' Mar-a-Lago indictment in which the former president was charged with retaining national security information—including U.S. nuclear secrets and plans for military retaliation in the event of an attack after he left the White House—and obstructing efforts to retrieve them in June 2023. Trump has denied all wrongdoing in the case and has pleaded not guilty to the charges.
On Monday Cannon issued an order instructing lawyers to file proposed jury instructions by April 2 in which she laid out two different legal scenarios, one which would instruct the jury to decide whether Trump did not have the authorization to keep classified documents found on his property, and the second in which it is assumed that Trump did have the authority to keep the records because he was president, per the Presidential Records Act (PRA).
The order has been fiercely criticized by legal analysts, leading to renewed calls for Cannon's removal from the case.
Speaking with Newsweek, a number of legal experts have attempted to explain what Cannon's motivations may be with the controversial order, laying out the consequences the ruling could have for the rest of the trial.
Matthew Mangino, a former district attorney in Lawrence County, Pennsylvania, said Cannon was making "a punt" to almost rule in Trump's favor. He said: "It appears that Judge Cannon wants the jury to decide the application of the Presidential Records Act, the Espionage Act and immunity for that matter.
"Juries are normally instructed on the law and asked to apply the law to the facts and make a decision. Here Cannon is asking the jury to judge the law and the facts—after a day long hearing on these issues.
"The judge didn't make a decision on Trump's motions—instead she punted. In this case a punt may be the next best thing to ruling in Trump's favor."
Jonathan Entin, a law professor at Case Western Reserve University, agreed that the order may be favorable to the former president. He said: "The order might give Trump a get-out-of-jail-free card by allowing the jury to decide whether some or all of the documents at issue were either personal or declassified."
Bradley Moss, an attorney who works for D.C. lawyer Mark S. Zaid, called the order "bizarre."
"It's a rather bizarre order," he said. "It is not entirely clear what she is asking the Government to do here other than, theoretically, have them respond by saying that these two hypothetical scenarios do not lend themselves to plausible jury instructions because they implicate pure questions of law that need to be addressed by Judge Cannon, not by the jury."
The PRA was implemented after the Watergate scandal involving former President Richard Nixon. It requires that every presidential document must be sent to the National Archives and Records Administration when the president leaves office as the materials in question belong to the government, not the commander-in-chief, personally.
Trump's legal team has filed a motion saying the act allowed him to retain the materials as his own personal property and Cannon is yet to rule on it.
Newsweek contacted a representative for Trump by email to comment on this story.
Cannon is due to soon confirm the start date for the classified documents trial. She is expected to push it back from its current start date of May 20.
About the writer
Kate Plummer is a Newsweek reporter based in London, U.K. Her focus is on U.S. politics and national affairs, and ... Read more