The Mar-a-Lago judge is entertaining Trump’s most brazen defenses

Donald Trump at a campaign rally in Rome, Georgia, on 9 March 2024. Photograph: Mike Stewart/AP

The federal judge overseeing Donald Trump’s prosecution on charges of retaining classified documents appears to be entertaining his most brazen defenses that could ultimately result in ensuring the acquittal of the former president.

The issue revolves around an order from the US district judge Aileen Cannon on Monday asking Trump and prosecutors in the office of the special counsel Jack Smith to draft jury instructions for two scenarios that gave extraordinary credit to Trump’s defense theories.

The two jury instruction scenarios, as conceived by Cannon, were so beneficial to Trump and so potentially incorrect on the law of the Espionage Act that it would bring into serious doubt whether it made sense for prosecutors to take the case to trial.

In her two-page order, Cannon asked for both parties to draft jury instructions supposing it was true that Trump had the power under the Presidential Records Act to turn any White House document – classified or not – into personal records: records he was authorized to retain.

The authorization issue is key to the case because Trump was indicted for unlawfully retaining national security materials under the Espionage Act. If Trump could show that he was somehow authorized to keep the documents at Mar-a-Lago, it would preclude his prosecution.

The first scenario envisioned that it was up to the jury to decide whether prosecutors could show beyond a reasonable doubt whether Trump had designated each classified document he took to Mar-a-Lago as a personal document.

The second scenario envisioned that Trump had the “sole authority” to turn a document he came across as president into a personal record that he could keep, and the very fact that he took them with him to Mar-a-Lago meant it was a personal record.

Prosecutors could find a way to work with the first scenario, in large part because showing that the classified documents seized at Mar-a-Lago were not personal records would not be difficult.

Classified documents have long been considered materials which belong to the US government, meaning it necessarily could not be a personal record, and personal documents are defined as “purely private” papers which “do not relate to or have an effect upon the carrying out” of presidential duties.

But the second scenario, which would not allow prosecutors to contest whether a seized document was personal, could be fatal to the case because Trump would surely argue all the classified documents at Mar-a-Lago were personal by virtue of them being taken to Mar-a-Lago at the end of his term.

If that jury instruction was taken to trial, legal experts suggested, Trump should file for what is known as a Rule 29 directed motion for acquittal and Cannon could hold as a matter of law that a reasonable jury would never convict Trump of violating the Espionage Act.

And if the jury instruction went forward and Trump filed for acquittal as trial, because the trial would have already started, double jeopardy would have “attached” – preventing prosecutors from re-trying the case later for instance with a different judge or different jury instructions.

If Trump could show that he was somehow authorized to keep the documents at Mar-a-Lago, it would preclude his prosecution

Ironically, the curious order from Cannon asking both parties to draft jury instructions appears to have come about because she felt inclined to deny Trump’s motions to dismiss the indictment under the Presidential Records Act and wanted the case to proceed to trial.

Trump had asked Cannon to dismiss the indictment on multiple fronts, including one contention that Trump had turned the classified documents at issue into personal records and could not be second-guessed, relying on a strained reading of a case involving the conservative group Judicial Watch.

The Judicial Watch case involved the so-called “Clinton socks case”. When Bill Clinton was president, he made 79 tapes for a memoir, which included portions of his phone calls as president.

Judicial Watch sought access to the tapes, but the National Archives said it did not have them, and at any rate regarded them as personal not presidential records. Judicial Watch sued, trying to force the National Archives to designate them as presidential, but the lawsuit was dismissed.

But Cannon appeared dubious of Trump’s position, and at one point told Trump’s lead lawyer Todd Blanche that for her to dismiss the indictment on Presidential Records Act grounds, it would require her to rule that it eliminated the Espionage Act altogether.

It was precisely around that discussion that Cannon asked Trump’s lawyers what the instructions would be for the jury to decide what “unauthorized possession” entailed, taking into consideration the Presidential Records Act.

While prosecutors maintained that the Presidential Records Act had nothing to do with classified documents governed by the Espionage Act, Blanche muddied things for Cannon by insisting their position was the jury instructions needed to include language from the Presidential Records Act.