Jack Smith’s Latest Gambit Could Prove Disastrous To Putting Trump On Trial Before Election, Legal Experts Say

Special Counsel Jack Smith’s latest threat to appeal over a jury instructions order issued by the judge overseeing the Trump classified documents case would almost ensure a trial does not take place before the election, legal experts told the Daily Caller News Foundation.

In Judge Aileen Cannon’s order requiring the parties to file proposed jury instructions, she included two scenarios that seemed to agree with Trump’s argument that he has discretion under the Presidential Records Act (PRA) to designate documents in his possession as personal, and that those decisions cannot be reviewed. Smith told Judge Aileen Cannon in a filing Wednesday that her order relied on a “fundamentally flawed legal premise,” saying jury instructions based on Trump’s theory would “distort the trial.”

The dispute touches on a central issue of the case, legal experts said, which is why Smith indicated he will appeal if Cannon does not agree with the government’s position.

“The issue over jury instructions is basically the crux of the entire case,” former federal prosecutor Andrew Cherkasky told the DCNF. “Mr. Trump’s authority to convert classified documents to his personal records would create an overwhelming advantage for Mr. Trump and could seriously frustrate the Government’s ability to prove its case beyond a reasonable doubt.”

Cannon’s order asked the parties to submit drafts of jury instructions that assume two scenarios to be “a correct formulation of the law.”

Her first scenario said that the jury is permitted to make a finding about whether the government has proven documents retained by the president are “personal or presidential” under the PRA. The second said that “a president has sole authority under the PRA to categorize records as personal or presidential during his/her presidency”

While appeals prior to trial in criminal cases are rare, Cherkasky said it is permitted “where the issue is a fundamental debate about the law that applies to the criminal charge and could impact the outcome of the trial.” He said Smith’s threat to appeal seems to offer Trump a similar opening to appeal before the trial, should the judge side with the government.

“This very issue could be the matter that delays this trial beyond the election,” Cherkasky told the DCNF.

In other situations, Smith has sought to speed up the process and move forward to a trial.

He asked the Supreme Court in December to intervene in Trump’s bid to dismiss his election interference case based on presidential immunity before an appeals court had a chance to weigh in. He has also repeatedly emphasized the “public’s interest” in quickly proceeding to trial.

But here, allowing jury instructions based on Trump’s argument to stand could signal a loss for Smith.

“If [Trump’s legal theory] is true, it would undermine much of the government’s case against him,” John Malcolm, vice president for The Heritage Foundation’s Institute for Constitutional Government and former deputy assistant attorney general in the Justice Department’s Criminal Division, told the DCNF.

“Judge Cannon is not only considering that argument as a matter of law, but is also contemplating giving a jury instruction to that effect, which would dramatically increase the likelihood that the jury would acquit Trump at trial,” he continued. “A ruling by the 11th Circuit rejecting that argument would significantly strengthen the government’s case, and that court has already reversed Judge Cannon when she attempted to appoint a special master following the execution of the search warrant at Mar-a-Lago.”

A number of attorneys picked up on the significance of Smith’s filing, highlighting his apparent frustration with Cannon and severe tone.

Former Special Counsel Ryan Goodman wrote that “things just got very real.” Former federal prosecutor Renato Mariotti wrote on X that Smith “threw down the gauntlet.”

“Prosecutors can’t appeal not guilty verdicts,” Mariotti wrote. “That’s why Smith wants her to rule before trial.”

Trump said on Truth Social Thursday that Smith should be “sanctioned or censured for the way he is attacking a highly respected Judge.”

Malcolm agreed that Smith’s response to Cannon was a “significant event.” He likewise noted any appeal “would make all but certain that this case would not go to trial before the November election.”

Meanwhile, Cannon has not yet set a trial date after hearing arguments last month. Smith proposed a July 8 start date, while Trump requested it be postponed until after the election, though he offered an alternate August 12 start date.

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