First, despite the assertion that a court or jury can't decide whether something is personal or presidential, the National Archives sure can, just by applying the Act's definitions--and the National Archives has definitely made its decision.
Second, what does the emphasized mean: ", be categorized as presidential records or personal records upon their creation or receipt and be FILED separately.” Filed where? A list with the National Archives? In separate filing cabinets? The stuff in all the boxes certainly wasn't "filed separately." There was a lot of purely personal stuff that the FBI returned. Why shouldn't we "deem" everything in the box "presidential" and include medical records or love notes from Kim as presidential? Same reason: definitions rule.
As you suggest, if a president 'designates" document with national security information as "personal" and walks off with it (forget the classified label) he has STILL walked off with documents containing national security information, and that's what he's charged with. The telepathic declassification he claims also applies to telepathic designation of personal records: neither changes the content.
The main thing people are worried about isn't an erroneous jury instruction during trial but a directed verdict based on the "personal records" defense. Since that would create a double jeopardy problem, I am wondering if the Extremes would consider "double jeopardy" has attached if a court directs a verdict on clearly erroneous legal grounds that it has been FULLY BRIEFED on during the course of the litigation?
IANAL and on these legal issues defer mightily to those who are. The more so if they've worked in the specific courts and/or at the trial or appellate level under discussion.
A big THANK YOU for the P(Doom) section, by far the most important. Many have discussed the facts of what's happened but none have said as much about where it's likely to go.
I hope you're right about that. I think Cannon *will* try to tank this prosecution - more out of ego, spite, and stress than even politics. There's plenty of upside and too little downside for her. And few, but now including you, seem to think she can be prevented. I'm gradually relaxing the death-grip on my pearls. Do PLEASE stay on this.
With my naive background it's been literally stupefying to watch a federal judge behave as she has.
Cannon has a lifetime appointment in a low-traffic and usually low-profile district. I don't know how many such judges in such situations decide to leave the bench but imagine it isn't many.
I usually find your posts very insightful and well-argued. This one puzzles me. I honestly cannot follow your thinking. Regarding the PRA, you state that "it is blindingly obvious that the documents are not, in fact, personal records." You also say that, by Trump's own admission, he "did not in fact categorize the documents as personal records while he was President." So how is it that you "can see why the court would want to defer a detailed legal analysis of the PRA until the facts become clearer"? What facts, exactly, are unclear? The fact that the documents (which surely the judge has had an opportunity to see for herself in order to deal with security clearances and the like) are not personal records, something you think is "blindingly obvious?" Or the fact that Trump, by his own admission, did not categorize them as personal records? What hypothetical facts might lead one to conclude that the PRA applies? And why would such an apparently obvious ruling be "dramatic"? I also am extremely confused by your casual dismissal of what you admit is the modal outcome - - a wrong jury instruction followed by a writ of mandamus with who knows what consequence. You refer to forking paths but the ones you mention seem utterly improbable. Trump's lawyers will never ever drop their argument - - lawyers don't abandon defense arguments. In fact, as best I can tell, they work hard to find ways to raise them even when the judge has categorically denied them. You offer no hint as to how or why the Special Counsel might ever find the PRA "helpful". They don't seem to think so. Is there some scenario, however remote, that they haven't considered? You also say the trial might be delayed for another reason, but yet the risk you (and every other lawyer) refers to is double jeopardy. So, the only remaining "forking path" is that the judge might rule in the Special Counsel's favor. That's what draws you to the conclusion that "everything is going to be fine"? Which you then follow by the true doom scenario of the judge simply ignoring everything presented at trial and then just dismissing the case?????
All I’m saying is that litigation has a way of taking twists and turns. Query, for instance, how Trump is going to feel about testifying that these documents are “personal records.” I think there is an unusually high degree of uncertainty, much more so than in, for instance, many SCOTUS cases.
I accept - and understand- your opinion regarding uncertainty. But that argues against your conclusion that everything will be fine. It would also suggest that there are facts that could turn classified documents about confidential government matters into personal papers, nullifying an otherwise blindingly obvious conclusion. As for how Trump would testify, I suspect he sincerely believes the documents are his and his alone.
I think at the very least a proposed jury instruction from Smith should be "It is a matter of law that these documents are not "personal records" and the jury should disregard any argument that they are."
Not just helpful and clear but funny. If Cannon reads it she will do what makes post get deleted. DOJ has to find a way to mandamus a transfer to a new judge. Would love to see an Adam article on how to.
The super smart crim law whizzes on teevee say once the jury is empaneled it is too late for govt to appeal an adverse ruling. You talk about seeking mandamus “midtrial.” Perfesser, when does jeopardy attach?
Not only is there no problem with it, it's actually happened. Lawfare had an article on the history of those sorts of petitions last Wednesday (March 27), and they identify a case (United States v. Pabon-Cruz) where the government successfully challenged jury instructions via mandamus mid-trial (albeit in a different circuit).
The reason the SC is worried is that the question about jury instructions, and especially Cannon's response, together with many of the timing decisions, and of course the previous case she oversaw, gives reason to genuinely fear that she will do whatever it takes to arrange the outcome here, AND she is going to be careful not to give them anything that would allow them to seek to have the case removed from her. The latter is the really scary thing for the SC: if Cannon felt her decisions are going to be fair and reasonable, why take such care to ensure that they can't be reviewed?
Adam, how do you feel this comment aged? Do you think I was right about whether the SC was worried that Canon would do whatever it takes to arrange the outcome here, and was their concern justified?
IANAL, but it seems to me under 44 USC 2201 (2) (B) these are not only not personal records, they are not Presidental records either. They are agency records.
(2) The term “Presidential records” means
..
B) does not include any documentary materials that are (i) official records of an agency ...
First, despite the assertion that a court or jury can't decide whether something is personal or presidential, the National Archives sure can, just by applying the Act's definitions--and the National Archives has definitely made its decision.
Second, what does the emphasized mean: ", be categorized as presidential records or personal records upon their creation or receipt and be FILED separately.” Filed where? A list with the National Archives? In separate filing cabinets? The stuff in all the boxes certainly wasn't "filed separately." There was a lot of purely personal stuff that the FBI returned. Why shouldn't we "deem" everything in the box "presidential" and include medical records or love notes from Kim as presidential? Same reason: definitions rule.
As you suggest, if a president 'designates" document with national security information as "personal" and walks off with it (forget the classified label) he has STILL walked off with documents containing national security information, and that's what he's charged with. The telepathic declassification he claims also applies to telepathic designation of personal records: neither changes the content.
The main thing people are worried about isn't an erroneous jury instruction during trial but a directed verdict based on the "personal records" defense. Since that would create a double jeopardy problem, I am wondering if the Extremes would consider "double jeopardy" has attached if a court directs a verdict on clearly erroneous legal grounds that it has been FULLY BRIEFED on during the course of the litigation?
IANAL and on these legal issues defer mightily to those who are. The more so if they've worked in the specific courts and/or at the trial or appellate level under discussion.
A big THANK YOU for the P(Doom) section, by far the most important. Many have discussed the facts of what's happened but none have said as much about where it's likely to go.
I hope you're right about that. I think Cannon *will* try to tank this prosecution - more out of ego, spite, and stress than even politics. There's plenty of upside and too little downside for her. And few, but now including you, seem to think she can be prevented. I'm gradually relaxing the death-grip on my pearls. Do PLEASE stay on this.
With my naive background it's been literally stupefying to watch a federal judge behave as she has.
Thanks again.
"You show loyalty to me, and the Trump Organization will show loyalty to you when you decide to leave the bench". Fits the facts.
Cannon has a lifetime appointment in a low-traffic and usually low-profile district. I don't know how many such judges in such situations decide to leave the bench but imagine it isn't many.
I usually find your posts very insightful and well-argued. This one puzzles me. I honestly cannot follow your thinking. Regarding the PRA, you state that "it is blindingly obvious that the documents are not, in fact, personal records." You also say that, by Trump's own admission, he "did not in fact categorize the documents as personal records while he was President." So how is it that you "can see why the court would want to defer a detailed legal analysis of the PRA until the facts become clearer"? What facts, exactly, are unclear? The fact that the documents (which surely the judge has had an opportunity to see for herself in order to deal with security clearances and the like) are not personal records, something you think is "blindingly obvious?" Or the fact that Trump, by his own admission, did not categorize them as personal records? What hypothetical facts might lead one to conclude that the PRA applies? And why would such an apparently obvious ruling be "dramatic"? I also am extremely confused by your casual dismissal of what you admit is the modal outcome - - a wrong jury instruction followed by a writ of mandamus with who knows what consequence. You refer to forking paths but the ones you mention seem utterly improbable. Trump's lawyers will never ever drop their argument - - lawyers don't abandon defense arguments. In fact, as best I can tell, they work hard to find ways to raise them even when the judge has categorically denied them. You offer no hint as to how or why the Special Counsel might ever find the PRA "helpful". They don't seem to think so. Is there some scenario, however remote, that they haven't considered? You also say the trial might be delayed for another reason, but yet the risk you (and every other lawyer) refers to is double jeopardy. So, the only remaining "forking path" is that the judge might rule in the Special Counsel's favor. That's what draws you to the conclusion that "everything is going to be fine"? Which you then follow by the true doom scenario of the judge simply ignoring everything presented at trial and then just dismissing the case?????
All I’m saying is that litigation has a way of taking twists and turns. Query, for instance, how Trump is going to feel about testifying that these documents are “personal records.” I think there is an unusually high degree of uncertainty, much more so than in, for instance, many SCOTUS cases.
I accept - and understand- your opinion regarding uncertainty. But that argues against your conclusion that everything will be fine. It would also suggest that there are facts that could turn classified documents about confidential government matters into personal papers, nullifying an otherwise blindingly obvious conclusion. As for how Trump would testify, I suspect he sincerely believes the documents are his and his alone.
I think at the very least a proposed jury instruction from Smith should be "It is a matter of law that these documents are not "personal records" and the jury should disregard any argument that they are."
Not just helpful and clear but funny. If Cannon reads it she will do what makes post get deleted. DOJ has to find a way to mandamus a transfer to a new judge. Would love to see an Adam article on how to.
The super smart crim law whizzes on teevee say once the jury is empaneled it is too late for govt to appeal an adverse ruling. You talk about seeking mandamus “midtrial.” Perfesser, when does jeopardy attach?
Jeopardy attaches when the jury is empaneled, but I don’t see a problem with a writ of mandamus before the jury has been discharged.
Not only is there no problem with it, it's actually happened. Lawfare had an article on the history of those sorts of petitions last Wednesday (March 27), and they identify a case (United States v. Pabon-Cruz) where the government successfully challenged jury instructions via mandamus mid-trial (albeit in a different circuit).
The reason the SC is worried is that the question about jury instructions, and especially Cannon's response, together with many of the timing decisions, and of course the previous case she oversaw, gives reason to genuinely fear that she will do whatever it takes to arrange the outcome here, AND she is going to be careful not to give them anything that would allow them to seek to have the case removed from her. The latter is the really scary thing for the SC: if Cannon felt her decisions are going to be fair and reasonable, why take such care to ensure that they can't be reviewed?
Adam, how do you feel this comment aged? Do you think I was right about whether the SC was worried that Canon would do whatever it takes to arrange the outcome here, and was their concern justified?
Not sure possession of obscene materials works as an analogy, given Stanley v. Georgia.
Well, child pornography then.
That works.
IANAL, but it seems to me under 44 USC 2201 (2) (B) these are not only not personal records, they are not Presidental records either. They are agency records.
(2) The term “Presidential records” means
..
B) does not include any documentary materials that are (i) official records of an agency ...
He was not charged with a crime under the presidential records act. He was charged with a whole different offense. Espionage or something not PRA.