Special Counsel Jack Smith Threatens to "Mandamus" The Judge in the Florida Documents Case -- The Judge Slaps Back

It Is Hard To Complain to the Appellate Court About a Jury Instruction Before there is a Jury Instruction to Complain About.

There was a saying well-known to federal prosecutors in the offices where I worked — “No judge ever got reversed for screwing over the government.”

What that meant was that if federal judge makes erroneous rulings that are favorable to a defendant, whether on pretrial matters or during the trial itself, and those rulings resulted in the acquittal of the defendant at trial, there was no opportunity for the prosecutor to get those rulings reversed on appeal and have another shot at obtaining a conviction. I’ll come back to this again at the end and you’ll know why.

This artiçle needs to begin with a couple of observations because they are important to keep in mind when considering the issues below where the two sides have differing views about how the Judge in Florida should proceed:

1. No former President has ever been prosecuted under the Espionage Act for “unauthorized” possessing of documents after leaving office where the documents involved were ones he was authorized to possess while still in office.

2. No federal judge has ever before been asked to fashion jury instructions for a former President who had access to and could lawfully possess EVERY document with “national defense information” but was later charged with criminal possession of such documents by retaining them after leaving office.

3. The Judge presiding over the Florida case has zero interest in the political calendar that occupies every second of every hour of Special Counsel Jack Smith’s day.

Who/what “authorized” the lawful possession of documents in the first instance, and by what mechanism did the authorized possession become “unauthorized” if the former President didn’t do anything other than become a “former” President?

This is an issue that has never before been the subject of a federal criminal trial. When an issue has never before been addressed in the law, those are referred to as “issues of first impression” or “novel questions of law.”