Have you seen this latest update from NBC News?'The nuclear button': Special counsel could seek removal of judge in Trump classified docs case, attorneys warn
I've seen it but don't make much of it. Smith may be lucky the judge did not respond with an order to appear before the court to show cause why he should not be held in contempt of court.
Rather than reply to the directive of the court, he chose to respond with a temper tantrum. He is losing his ability to have a trial before the election.
Judge Cannon indicated that she was considering certain instructions to the jury and sought aid of counsel be directing them to submit a paraphrase of said instructions in language which would be acceptable to counsel while conveying what the judge was considering. Smith refused to submit the directed paraphrase of of what the judge was considering.
[NBC] Smith faulted Judge Aileen Cannon in a scathing rebuke for seeming to take at face value Trump’s “fundamentally flawed” claim around a president’s official and personal records when she asked both sides to put forth competing versions of instructions for jurors in the case and said her request would “distort” the trial. Smith indicated in that filing that if Cannon ruled against federal prosecutors, this could be a trigger for an appeal to the 11th Circuit that could remove her from the case.
Judge Cannon has not indicated that she has taken a position, only that she is considering certain jury instructions. Her request for counsel to paraphrase what she was considering can in no way distort the trial. There is no trial in session, there is no jury, and nothing has been presented to the jury that does not exist. Jack Smith simply does not want to give a paraphrase of the court's contemplated instruction on the law regarding the Presidential Records Act, lest the Court adopt his phrasing and he could not challenge the manner in which it was phrased.
Jack Smith does not really want to appeal pre-trial or the trial will be in 2025.
https://s3.documentcloud.org/documents/24486068/govuscourtsflsd6486534070.pdf
The instruction of the court of 3/18/2024 was as follows:
On or before April 2, 2024, Defendant Trump and the Special Counsel each shall file proposed jury instructions limited to the essential elements of the offenses charged in Counts 1 through 32 of the Superseding Indictment [ECF No. 85], along with proposed verdict forms for those counts (general or special).1 Moreover, understanding that juries are judges of the facts, not the law, the proposals shall take care to specify (in incorporated briefing as necessary) exactly what factual questions are reserved for the jury on Counts 1 through 32 in light of the recently argued motions to dismiss [ECF Nos. 325, 327].2 With respect to the proposed language pertinent to the issue of “unauthorized possession” specifically, the parties must engage with the following1 Instructions beyond the substantive contours of Counts 1 through 32 are not part of this Order, but defenses inextricably intertwined with the statutory definitions are so contained. The standard twenty-page limit for memoranda of law does not apply to the ordered submissions.
2 Deadline for final proposed jury instructions and verdict forms to be set by separate order.
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competing scenarios and offer alternative draft text that assumes each scenario to be a correct formulation of the law to be issued to the jury, while reserving counterarguments.
(a) In a prosecution of a former president for allegedly retaining documents in violation of 18 U.S.C. § 793(e), a jury is permitted to examine a record retained by a former president in his/her personal possession at the end of his/her presidency and make a factual finding as to whether the government has proven beyond a reasonable doubt that it is personal or presidential using the definitions set forth in the Presidential Records Act (PRA).3
(b) 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. Although there is no formal means in the PRA by which a president is to make that categorization, an outgoing president’s decision to exclude what he/she considers to be personal records from presidential records transmitted to the National Archives and Records Administration constitutes a president’s categorization of those records as personal under the PRA.
DONE AND ORDERED in Chambers at Fort Pierce, Florida, this 18th day of March 2024.
___________________________________
AILEEN M. CANNON
UNITED STATES DISTRICT JUDGEcc: counsel of record
____________________________________
3 Any separation of powers or immunity concerns shall be included in this discussion if relevant.2
Thanks. That's what I thought. Smith thought he was in control, because he usually is in the DC system.
-PJ