Jack Smith may have no choice but to go to the 11th Circuit on mandamus. Judge Cannon’s attempt to make her jury-question gambit as a transparent attempt to dismiss the entire case seems contrived and tentative. Today’s decision seems to at least have resolved one element while still retaining the possibility of dismissing the case.
So a) she seeks to genuinely understand competing issues but what this actually means is b) she hasn’t got the legal skills to properly understand the competing issues. She is planning on granting motion to dismiss after jeopardy attaches and won’t issue an order that is subject to appellate review.
Judge Cannon in the MAL classified documents case has DENIED Donald Trump's Motion to Dismiss the indictment based on the Presidential Records Act.
Fully advised in the premises, the Motion is DENIED [ECF No. 327]. Bound by the four corners of the Superseding Indictment, Counts 1 through 32 track the statutory language and essential elements of the charged portion of 18 U.S.C. § 793(e) [ECF No. 85 p. 32]. See 18 U.S.C. § 793(e) (making it illegal to “hav[e] unauthorized possession of . . . any document . . . relating to the national defense . . . and willfully retain[] the same and fail[] to deliver it to the officer or employee of the United States entitled to receive it”). Those same counts make no reference to the Presidential Records Act, nor do they rely on that statute for purposes of stating an offense. As for the remaining counts against Defendant Trump (Counts 33–38, 40–41), they too track the applicable statutory language and essential elements of the charged crimes [ECF No. 85]; 18 U.S.C. §§ 1001, 1512, 1519. More generally, the Superseding Indictment specifies the nature of the accusations against Defendant Trump in a lengthy speaking indictment with embedded excerpts from investigative interviews, photographs, and other content. For these reasons, accepting the allegations of the Superseding Indictment as true, the Presidential Records Act does not provide a pre-trial basis to dismiss under Rule 12(b)(3)(B)(v)—either as to Counts 1 through 32 or as to the remaining counts, all of which state cognizable offenses.
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 [see ECF No. 428]. The Court’s Order soliciting preliminary draft instructions on certain counts should not be misconstrued as declaring a final definition on any essential element or asserted defense in this case. Nor should it be interpreted as anything other than what it was: a genuine attempt, in the context of the upcoming trial, to better understand the parties’ competing positions and the questions to be submitted to the jury in this complex case of first impression [ECF No. 407]. As always, any party remains free to avail itself of whatever appellate options it sees fit to invoke, as permitted by law.
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