Replies

Julie Kelly X-Twitter thread via Thread reader:

*****

Reading Jack Smith's response on jury instructions and it's clear that the gloves are off btw DOJ and Judge Cannon.

One defense attorney just told me: "The tone Smith is taking with Cannon is no longer persuasion but outright threats. Unheard of dynamic btw DOJ and the bench."

Jack Smith's response is hysterical (and not in a funny way in a desperate way) bc he knows he has little control over her decision related to final jury instructions.

And he is arguing the basis for Trump's "unauthorized possession" of national defense material rests on Obama exec order not the Presidential Records Act.

So everyone who cried for months that "DRUMPF BROKE THE PRA!" can sit down. Jack Smith says PRA now has nothing to do with the case.

Also reminder of the bait and switch here. NARA sought files based on the claims Trump was violating the PRA. He produced 15 boxes of papers. NARA then claimed they found records with "classified markings" and sent a criminal referral (1st time ever) to FBI.

FBI promptly opened investigation. FBI sent a subpoena to Trump in May 2022 seeking more records with "classified markings." They turned over 38 more files.

Then in August, FBI sought search warrant seeking "national defense information." Reminder too we have not seen full unredacted application for search warrant.

Did DOJ seek warrant under the PRA or the Espionage Act or Obama's Exec Order or....what?

I will separate out Smith's threats to Cannon (unusual and toothless for the most part) later but this is basically the jury instructions DOJ wants to use.

This also might be a problem for DOJ bc it appears Trump still had Q security clearance at Dept. of Energy--one that DOE retroactively rescinded after Smith indicted Trump.

Also during March 14 hearing, DOJ claimed there was no formal process for a president to either receive or lose security clearance. So this might be another area of contention.

This is why Smith is so angry--he knows if Cannon proceeds with the proposed scenario presented in her jury instructions order, he is, as one defense attorney told me at the time, f*cked.

He essentially demands that she rule now on jury instructions (she doesn't have to) or dismiss the counts so he can appeal. If she doesn't, he might seek "mandamus" at appellate court--asking 11th Circuit to tell Cannon what to do in the case. Very rare.

A reminder that this is Smith's indictment.

Charged a former president for the first time on violating the Espionage Act.

Now Smith's wants the jury to interpret the language of the law based on Obama's Executive Order not the Presidential Records Act.

*****

FBI sent a subpoena to Trump in May 2022 seeking more records with “classified markings.”

They choose every word carefully. They did not ask for classified documents. They asked for documents with “classified markings”.

Then he was not charged under the laws for mishandling classified documents, he was charged under the Espionage Act for having “National Defense Information”. That does not require the information to be classified. This is a total set up.

Executive orders are directives to the employees of the executive branch on how to execute their duties. They are not directives to future presidents and they are not laws and don’t apply to citizens (although when the Pres directs a bureaucrat to set up a firing squad and he does it, that is scant comfort to the victims).

If his case is that Obama can order Trump around from his villa in Hawaii, through an old EO he issued to his staff well, that’s a bold plan.