'I am phoning a friend': Legal experts slam Cannon’s new Trump order as 'unclear' and 'utterly nuts'

18 March 2024

US District Judge Aileen Cannon — who's presiding over Donald Trump's Mar-a-Lago classified documents case — issued a court order Monday that legal experts are struggling to fully understand.

Cannon last week rejected Trump's motion to dismiss the case brought by special counsel Jack Smith altogether. However, Palm Beach County, Florida State Attorney Dave Aronberg said the judge's decision is "only a 'temporary victory' for Smith" because Cannon denied the motion "without prejudice, meaning that Donald Trump can bring it up again in the middle of the trial, and if Judge Cannon agrees, in the middle of the trial, then double jeopardy attaches, and Jack Smith won't be able to appeal it to the 11th circuit court of appeals and then jack smith is done on that claim."

MSNBC's The Katie Phang Show host and legal expert Katie Phang shared Cannon's Monday order via X/Twitter, writing, "JUST IN: Judge Cannon, in the MAL case, orders Trump and Special Counsel to submit proposed jury instructions and verdict forms regarding the 'essential elements' of the Espionage Act."

According to the New York Times, "The Espionage Act, a World War I-era law once used to stamp out dissent, eventually became the government’s legal tool of choice against spies and unauthorized leakers. But now former President Donald J. Trump faces questions about whether he violated the act after the F.B.I. seized top secret documents that he had taken to his Mar-a-Lago residence in Florida."

Phang wrote, "Regarding the proposed language, Cannon also orders both Trump and the Government to submit language for the jury that contemplates competing factual scenarios that she sets forth in her Order."

The legal expert continued, "So why would Cannon go through the effort to order both sides to submit proposed jury instructions and verdict forms if she's just going to dismiss the indictment under the Presidential Records Act?..."

Phang wrote, "I am phoning a friend," tagging national security lawyer Bradley P. Moss (@BradMossEsq) and former Central Intelligence Agency lawyer Brian Greer (@secretsandlaws).

"This Order from Cannon is confusing and very much unclear," the MSNBC host added.

Cannon wrote in her order:

(a) In a prosecution of a former president for allegedly retaining documents in violation of, a jury is permitted to examine a record retained by a former president in his/her personal possession at the end of his/her presidency and make a factual finding as to whether the government has proven beyond a reasonable doubt that it is personal or presidential using the definitions set forth in the Presidential Records Act (PRA).

(b) A president has sole authority under the PRA to categorize records as personal or presidential during his/her presidency. Neither a court nor a jury is permitted to make or review such a categorization decision. Although there is no formal means in the PRA by which a president is to make that categorization, an outgoing president’s decision to exclude what he/she considers to be personal records from presidential records transmitted to the National Archives and Records Administration constitutes a president’s categorization of those records as personal under the PRA.

Moss replied to Phang, writing, "Here is what really confused me with Cannon’s order: why are we haggling over jury instructions already? The trial is already being pushed off to the summer at this point, right? It’s March. Why is this a discussion right now?" He added, "This second scenario is legally insane. If that were the case, then just grant Trump’s motion to dismiss on PRA grounds so DOJ bring it to the 11th circuit for a quick reversal."

Greer wrote, "There is nothing worse as a litigator, and probably as a reporter like @KatiePhang too, than a judge issuing an order and you having no idea what they are saying. But it's especially bad if it's Judge Cannon addressing a critical issue in the prosecution of a former president."

The former CIA lawyer added, "Was able to workshop Judge Cannon's order with @KatiePhang. I think we made sense of it, and yes it's not good. The optimistic take is that maybe once Cannon sees how truly absurd both scenarios are in terms of instructing a jury, she'll decide not to go down this road."

Conservative lawyer and analyst George Conway chimed in, writing, "Okay, I’ve seen enough. Not only should Aileen Cannon not be sitting on this case, but she should not be sitting on the federal bench at all. This is utterly nuts."

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