No. of Recommendations: 11
Albaby, can you help me understand why she is doing this and how it affects the trial?
Here's my take:
One of the defenses that DJT has raised is that the documents in question were "personal records" under the Presidential Records Act. The government disagrees. That's pretty straightforward.
A complicating factor is that DJT has argued that a determination by the President that records are "personal" under the PRA is not reviewable. A court does not have the ability to come in and determine, after the fact, that the President somehow got it "wrong" when designating those records as personal. It's a purely discretionary act (goes the argument), so there's no standards or criteria or limits that a court can apply after the fact to determine whether the President made a mistake. Rough analogy - the exercise of the Pardon Power, which is completely discretionary and not based on any criteria, so there's nothing for a court to review. The government disagrees, and claims that these determinations can be correct or not correct, and that a court can make that call.
Normally, we would expect the judge to decide which of those two competing arguments is correct. It's a legal issue. Judges rule on legal issues. Rather than decide that now, though, Cannon instead has asked the parties to draft jury instructions under each scenario. Legal observers have said (correctly, IMHO) that this is bonkers - rather than draft jury instructions, just rule on whether PRA decisions are reviewable or not, and move forward accordingly.
If I had to guess what she's trying to do, it would be the following. Cannon hasn't yet ruled on whether PRA decisions are reviewable or not. Note - this is bad. The one trait that is essential to being a judge, whatever their judicial philosophy or temperament, is to be decisive.
Despite her dithering on the reviewability question, though, she's made up her mind that if they are reviewable, then whether the President was correct or not in designating something personal is a question of fact for the jury. IOW, whether the decision is reviewable is a question of law - but if it is reviewable, whether any individual designation as to any individual document is correct would be a question of fact, and therefore goes to the jury. Which she suspects (correctly) that the government will have a real problem with, because the documents are classified and they're not going to want to let random citizens without clearance see them. IMHO, she believes that whether the jury can review the documents is relevant to the decision whether the PRA designation choice is reviewable or not - maybe under a theory that if the designation is reviewable and has to be reviewed by the jury (not the judge), and if the jury can't look at the documents, then the designation can't be reviewable?
An experienced and confident judge would just have the government brief that issue. Schedule a hearing, tell them that you're concerned about how a criminal court can review a PRA choice if it's a jury question and the documents are classified, and have them respond. Cannon doesn't seem to be experienced or confident, so she's issued this weird order to try to smoke out the government's stance on this by having them write a jury instruction. Rather than a brief.
