First, and not to quibble (well, maybe just a little), but I say "strawman" and you say "proposed." A difference without a distinction?
Just two different things. This was a shot across the bow of Jack Smith. The judge said she was considering using one of the two instructions on the applicable law.
In ordering alternative draft text that assumes each scenario to be a correct formulation of the law to be issued to the jury, the judge directed that be done "while reserving counterarguments." Jack Smith, whatever counterarguments you may have, stick a sock in it, I do not want to hear it right now. Jack Smith was just bluntly reminded that he is not the judge.
The judge is NOT asking Jack Smith anything. She is telling him to sit down, shut up, and create an alternative text that assumes each scenario to be a correct formulation of the law. The court is not interested at this time in hearing his counterargument.
Is this the basis that Smith will use to try to get Cannon removed from the case?
For the time being, Jack Smith will sit down, shutup, and do as he has been told. Writing proposed jury instructions is standard fare.
And third, was Cannon's reasoning that the jury hinges on who has the appropriate security level to see the documents in question, so she's proposing "strawman" jury instructions now to make the point that the eventual jury that is selected must be qualified to receive either of these jury instruction templates?
Either the President's decision that the records are personal prevails, or the jury must find that the government has proven beyond a reasonable doubt that the records are Presidential and not Personal. For the jury to make such a decision, they must be given access to to the records. They can be given the appropriate clearance or the records can be declassified. What cannot be done is enter the records as evidence and tell the jury that they can not see the records. The jury cannot convict Trump based on available evidence it cannot see.
The jury need have no special qualifications. The prosecution must find a way to make documents available for jury review, or they cannot be entered into evidence at trial. That is a Smith problem.
Recall that Jack Smith convened a grand jury in Washington, D.C., called witnesses there for months, and changed the venue at the last minute to Florida where he then quickly convened another grand jury to bring charges. Had Smith successfully litigated the case in D.C., only to have SCOTUS declare it was in the wrong jurisdiction, the case would have been dead.
The files themselves had been delivered to Florida before Trump left office. There could be no charge of unlawful possession while Trump was President in D.C. The case was not brought in D.C. because there was no D.C. connection with any wrongdoing.
There is nothing strawman about Judge Cannon's interpretation of the law. The Judge is the arbiter of the law to be applied in the case.
https://americafirstpolicy.com/issues/fact-sheet-jack-smith-a-record-that-speaks-for-itself
Among his more notable corruption cases, Smith prosecuted the former governor of Virginia, Robert McDonnell, a Republican. Although Smith scored a conviction against McDonnell, the case was later overturned by the U.S. Supreme Court in a unanimous 8-0 decision. The Court observed that “there is no doubt that this case is distasteful; it may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the Government’s boundless interpretation of the federal bribery statute.” (Politico, 6/27/16). The High Court also rebuked Smith and warned that “the uncontrolled power of criminal prosecutors is a threat to our separation of powers.”Smith prosecuted and convicted former Democrat vice presidential nominee John Edwards. “By not losing on any of the six felony counts for which he was being tried, John Edwards won the biggest victory of his political and legal life . . . A mistrial on five counts and an acquittal on one resulted in a clear — if not complete — legal vindication and a likely fatal setback for federal prosecutors seeking to convict the former U.S. senator and 2004 Democratic vice presidential nominee for allegedly violating the Federal Election Campaign Act.” (U.S. News, June 1, 2012).
Smith prosecuted Democrat Bob Menendez on public corruption charges. The case ended in a mistrial. “The way this case started was wrong, the way it was investigated was wrong, the way it was prosecuted was wrong, and the way it was tried was wrong as well,” Menendez said outside the courtroom at the time.” (Washington Examiner, 6/5/23).
[...]
“House Judiciary Committee Chair Jim Jordan (R-OH) launched a probe to conduct oversight over Special Counsel Jack Smith’s probe into former President Donald Trump for the handling of papers at Mar-a-Lago. In a letter to Attorney General Merrick Garland, Jordan requested information about the probe to ensure the investigation is not politicized by the FBI, which suffers from a lack of public trust after improperly involving itself in the 2016 Russia hoax.” (Breitbart, 6/2/23). Prior to the House probe, Jordan asked rhetorically, “guess who was the lead person at the Justice Department looking for ways to target and prosecute the very people looking into who Lois Lerner went after? Jack Smith, the guy Merrick Garland just named as special counsel to go after President Trump.” (Breitbart, 11/21/22).
Smith is not in the D.C. District Court anymore, and there is no Wizard behind the curtain in Florida. He needs to stock up on Prep H.
Think of how few people, in a major case, have seized the brass ring of a unanimous rejection by SCOTUS. It is not easy to get your argument to that level only to have them unanimously say you are full of crap. Smith earned that distinction with an admonishment to go with it. Smith summons the image of a goon on a hockey team.
Excerpt:
WASHINGTON — Special counsel Jack Smith could soon seek to have the judge presiding over former President Donald Trump’s classified documents case recused, prosecutors and defense attorneys warn, describing Smith as being pressed to the “breaking point” over arguments his office said could taint a trial irrevocably.See the full article at the link above.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.
“He is close to pushing the nuclear button,” said Palm Beach County State Attorney David Aronberg. “It is a high burden to reach, and it is rarely done, but her proposed jury instructions may have pushed him to the breaking point.”
That proposal for jury instructions, a final version of which would be delivered to jurors at the end of a trial, seemed to consider Trump’s interpretation of how classified documents could be preserved after leaving office, which is at the center of the charge against him.
[snip]
“Problem is, Smith cannot appeal her yet on this issue until she issues a specific order on the jury instructions,” Aronberg said. “If she wants to call Smith’s bluff, then Judge Cannon should announce that her jury instructions are adopted, or dismiss the case based on her understanding of the PRA.”
-PJ