Jury instructions are the latest flashpoint between Special Counsel Jack Smith  and Judge Aileen Cannon over her stewardship of the trial of President Trump, a conflict that brings into sharp relief how the relationship between prosecutor and jurist could soon be altered by an appeal. 

Mr. Smith’s cri de coeur takes the form of a reply to Judge Cannon’s order that both he and President Trump furnish her with jury instructions in respect of the relevance of a Watergate-era statute, the Presidential Records Act. Mr. Trump contends that, under that law, the documents he kept at Mar-a-Lago were “personal” and therefore their retention was not criminal.

The special counsel baldly argues that that “legal premise is wrong” and a jury instruction “that reflects that premise would distort the trial.” His ire is raised by Judge Cannon’s apparent understanding that Mr. Trump’s position could form the basis of the marching orders given to the jury before they embark on deliberations. Mr. Smith argues that the “distinction between personal and presidential records” has no legal significance in the realm of criminal law. 

Mr. Smith’s opinion that the presidential records law “should not play any role at trial at all” is worlds away from the “competing scenarios” for jury instructions that Judge Cannon outlined in her order. Now he wants to know if she understands that “unstated legal premise” to be the correct formulation of the law. If she does, he claims the “opportunity to consider appellate review well before jeopardy attaches.” That happens once a jury is empaneled. 

The prosecutor argues that telling a jury that a designation of, say, a top secret military document as “personal” could shield Mr. Trump from liability “would wrongly present to the jury a factual determination that should have no legal consequence.” Mr. Smith maintains that the only relevant law is the Espionage Act and the various obstruction charges he has handed up.

Mr. Smith characterizes Judge Cannon’s position as one where the president has “carte blanche to remove any document from the White House at the end of his presidency” and that a “former President is forever authorized to possess such a document regardless of how highly classified it may be and how it is stored.” In other words, he frames it as identical to Mr. Trump’s. 

The special counsel’s brief is suffused with urgency, suggesting that he worries that Judge Cannon could delay a decision on jury instruction until review would be foreclosed. He requests “an opportunity to seek prompt appellate review” and declares that the formulation of the instructions “cannot be deferred” and “must be decided promptly.”

Mr. Smith cites the Federal Rules of Criminal Procedure for the proposition that the “court must not defer ruling on a pretrial motion if the deferral will adversely affect a party’s right to appeal.” Especially so in a case like this one, where, as he contends, Mr. Trump’s position is “not based on any facts.” Mr. Smith calls the 45th president’s reliance on the PRA a “post hoc justification that was concocted more than a year after he left the White House” and “not grounded in any decision he actually made.”

While the special counsel is critical of Judge Cannon, he is withering to Mr. Trump, accusing him of fashioning “out of whole cloth a legal presumption that would operate untethered to any facts — without regard to his actual decisions, his actual intent, the unambiguous definition of what constitutes personal records under the PRA, or the plainly non-personal content of the highly classified documents that he retained.” 

Mr. Smith’s tone suggests that an appeal to the riders of the 11th United States appeals circuit is in the works. He quotes an appellate case for the proposition that courts have “permitted the Government to obtain writs of mandamus when a proposed criminal jury instruction clearly violated the law, risked prejudicing the Government at trial with jeopardy attached, and provided the Government no other avenue of appeal.”

A writ of mandamus is, the Legal Information Institute explains, an order from a higher court directing a lower one to “properly fulfill their official duties or correct an abuse of discretion.” The Department of Justice, which employs Mr. Smith, writes in its own resource manual that “Mandamus is an extraordinary remedy, which should only be used in exceptional circumstances of peculiar emergency or public importance.”