As the judge presiding over the federal prosecution of Donald Trump for hoarding classified records on his Florida estate, Aileen Cannon has been a dubious influence from the beginning. She has always accepted Trump's far-fetched legal arguments and general delay strategy.
But her latest order confirmed that Cannon has indeed crossed the line into interfering with the former president who put her in the hot seat.
The order, issued by Cannon on Monday night, addresses one of Trump's recurring and unfounded arguments for dismissing the charges. His lawyers claim that the Presidential Records Act gave him the power to reclassify any and all records as “personal” and that he did so simply by putting them in the bank safes he had taken to Mar -to-Lake.
This frivolous argument would go nowhere in most federal courts. It's a nonsensical reading of the law, which was designed to clarify that, aside from a small set of personal possessions, such as diaries, presidential records belong to the people and not the outgoing president.
Furthermore, the argument is beside the point. Regardless of how the records Trump stole are characterized, it is still a crime under the Espionage Act to intentionally withhold national defense information, as the documents at the center of this case clearly are.
However, Cannon's order does not address Trump's arguments on the merits. Rather, she instructs each side to present two sets of proposed jury instructions that “relate to” different legal conclusions about the records law. The problem is that both conclusions are directly contrary to the law.
Cannon's first scenario assumes that a jury has to reach a factual conclusion about whether the government proved beyond a reasonable doubt that the records Trump absconded with are presidential and not personal. In other words, what if Trump's claim that he magically transformed classified documents into his personal property was a valid factual defense rather than a baseless legal claim?
The second scenario is even more far-fetched because it assumes that a president has unreviewable authority to classify records as personal. If the jury received those instructions, it would be equivalent to guaranteeing Trump's acquittal.
Cannon's order is not only legally meaningless. It is also strange and pernicious.
It's a completely crazy way to address Trump's motion to dismiss the case based on the records law. Asking the parties to formulate jury instructions based on a legal fiction (indeed, a legal fantasy) months before the jury has been selected is perfectly surreal. I've never seen a remotely similar order.
Cannon began his difficult handling of the case with an equally inexplicable ruling that allowed Trump to challenge the search warrant served at Mar-a-Lago. The 11th Circuit Court of Appeals overturned that ruling in terms clear enough to raise the possibility that another such lawless misadventure could lead to the removal of the judge in the case.
That would dramatically change the legal and political course of events. The classified records charges against Trump are so concise that another judge could easily fast-track the case toward a probable and serious criminal conviction well before the November election.
That's where the pernicious aspect of Cannon's order comes into play. Even as the judge has considered Trump's theories and helped consume his time, she has studiously avoided issuing an order that could give special counsel Jack Smith's team a chance to appeal. and seek his recusal.
His latest order is a good example: it raises legal conclusions that could lead to quick reversal and force his recusal, but requires the parties only to “commit to” these illegal assumptions, which doesn't give an appeals court much to hold on to. . In short, Cannon is making mischief for Trump while he evades oversight of the appeal.
The judge appeared to employ a similar tactic in her ruling last week. While she rejected Trump's baseless motion to dismiss the case on the grounds that the Espionage Act is unconstitutionally vague, she left open the possibility that her attorneys could raise the issue again after the trial has begun.
Cannon's latest order also appears to lay the groundwork for an acknowledgment of Trump's ridiculous legal claims in future jury instructions. That's a particularly ominous prospect because at that point, a jury would have been empaneled and the double jeopardy clause would prevent a new trial.
Cannon may have devised a strategy that gives Trump the delay he wants and then dismisses the case once the jury has been sworn in, without ever exposing herself to the 11th Circuit stopping her or kicking her out of the case.
All of which leaves Smith facing a complicated decision. He can adhere to the letter of the judge's order and agree to potentially lay the groundwork for dismissing the case at an irremediable point. Or she can refuse to accept it, risk Cannon's wrath, and try to position the prosecution to appeal if she actually does something reviewable.
It's not an easy decision, especially when the referee appears to be playing for the other team.
Harry Litman is the host of Podcast “Talking about federals” and the Talking about San Diego Speaker series. @harrylitman
