A Loss by Jack Smith on Jury Instructions Could Lead to His Chance To Remove Judge Cannon From Case Against Trump

A ruling over what the jury hears before deliberations appears to be a lose-lose situation for the special counsel, but can he use it as a pretext for requesting recusal?

AP/Jose Luis Magana
Special Counsel Jack Smith speaks to reporters on June 9, 2023, at the District of Columbia. AP/Jose Luis Magana

Judge Aileen Cannon’s order that Special Counsel Jack Smith and President Trump submit dueling jury instructions raises a looming question: Will she be the one to deliver those instructions at trial? 

The prospect that Mr. Smith could request that Judge Cannon recuse herself or be removed from the case surfaced as a possibility when he challenged one of her rulings as “manifest injustice” and “clear error.” Her appointment of an outside expert to supervise the prosecution was, early in the case, overruled by the riders of the 11th United States Appeals Circuit.

The latest flash point could be those jury instructions, the marching orders that can affect which way a verdict goes. They are read from the bench just before deliberations begin. They are, the Legal Information Institute explains, the “only guidance the jury should receive when deliberating and are meant to keep the jury on track regarding the basic procedure of the deliberation and the substance of the law on which their decision is based.”

Judge Cannon wants these draft instructions to relate to the Presidential Records Act, a linchpin of Mr. Trump’s defense. He argues that under that statute, signed into law in Watergate’s wake,  the top-secret documents discovered stashed at Mar-a-Lago were “personal,” and therefore cannot be proof of violating the Espionage Act, as Mr. Smith alleges. Mr. Smith maintains that the PRA has no effect on criminal culpability. 

The judge, though, wants to see how both sides plan to explain what she calls two “competing scenarios” to a potential jury. She is curious, say, about whether the 45th president will argue that a “jury is permitted to examine a record retained by a former president in his/her personal possession … and make a factual finding as to whether the government has proven beyond a reasonable doubt that it is personal or presidential.” 

Judge Cannon’s alternative is no more favorable to Mr. Smith. It contemplates an instruction that proceeds from the position that 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.” That formulation, too, appears to tilt toward Mr. Trump. It’s heads he wins, tails Mr. Smith loses.

A loss for Mr. Smith, though, could provide the opening for an appeal. Any final order would be immediately appealable, and the jury instruction imbroglio could give the special counsel the platform to argue that Judge Cannon’s grip on the relevant law is less than secure or that her stewardship of the case is infected by bias. The 11th Circuit could consider any appeal narrowly, or render a more sweeping decision that could relieve her of her duties.     

Judge Cannon is a recently benched jurist, having been nominated by Mr. Trump in 2020. She has demonstrated a persistent solicitude for his point of view, treatment that the former president has not received from Judge Tanya Chutkan at the District of Columbia or the array of judges at New York. Judge Cannon is now mulling over whether to delay her trial until after the election, as Mr. Trump has requested. 

Lawyers tangle over jury instructions not only because how the case is framed can affect its outcome, but also because defective jury instructions can be potent grounds for appealing an adverse verdict. If the instructions are blemished by an error that courts do not see as harmless, the verdict can be thrown out and a new trial ordered. The Supreme Court has ruled that a “substantial and injurious effect” on the verdict is required for reversal. 

The New York Sun

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