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:
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.
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.
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.”
It has hubristic and idiotic to tell a federal judge that his/her point of view on an issue of first impression is wrong because disagreement under this circumstance is merely a matter of opinion. There is no case law that either side can point to and say what is the “right” or “wrong” answer to a question of law that has never before been asked.
Doing so in brief like SC Smith did this past week is an invitation to a beat down. It ignores the Rule No. 1 in when it comes to federal criminal trial practice — only one person in a federal courtroom wears a black robe, and about 99.9% of the decisions made by the person in that robe are never reviewed or reversed by a higher court.
Rule No. 1 means a trial lawyer before the Court needs to adjust to the position(s) being taken by the federal judge as a case unfolds, and not expect the federal judge to adjust to your preferred view of matters.
That is not to say that SC Smith is without recourse when pretrial matters do not go his way. A unique aspect of federal criminal procedure is that the government has no right to appeal decisions in the trial court that don’t go its way after there is an acquittal. Once a jury renders a verdict in favor of the defendant the case is over. There is no mechanism for the government to appeal what it believes were errors made by the trial judge during the course in the same way a defendant can appeal if there is a conviction. Prosecutors have to lick their wounds and move on.
Because of this, there are procedures that allow a prosecutor to take an issue up to the appellate court prior to the start of a trial. One such basis for appeal — normally using a petition for a writ of mandamus — are issues about proposed jury instructions where the government believes the Court plans to an instruction that is an incorrect statement of law that might lead to an outcome contrary to the law based on the the evidence the government expects to present at trial.
A simple example makes the point:
A defendant is charged with murder. The judge decides that the jury will be instructed that “murder” is a homicide committed only with a firearm. A homicide committed with any other kind of weapon is “manslaughter.” Obviously this is an incorrect statement of the law. The Government’s evidence will show the defendant killed the victim with a knife. The proposed instruction would mean an acquittal on the charge of murder and a conviction on the charge of manslaughter. So the prosecutor would take this issue up to the appeals court in advance of trial to prevent the jury from being mis-instructed as to the law on what constitutes “murder.”
The Judge in the Florida documents case ordered both sides to submit PROPOSED jury instructions on the issue of “authorized” possession of the documents found at Mar-A-Lago, and how such authorizing is impacted by whether the records were “personal” or “Presidential” as those terms are defined in the “Presidential Records Act” — the PRA.
Normally a Pretrial Scheduling Order in a criminal case sets the date when the two sides are to submit “Proposed Jury Instructions” for the case. In most cases the Judge has only a vague working understanding of what the evidence at trial will be — what the witnesses will say and what the documents will show. The final version of jury instructions are normally crafted after most/all of the evidence has been heard because the content of some instructions will depend on the evidence actually presented, and not as the parties expected it would be prior to trial. The language of the final instructions is worked out during a “jury instruction conference” — sometimes called a “charge conference” — which takes place near the end of the case.
The Florida judge is doing something here that she should be applauded for — not criticized. She is recognizing that some of these issues have never been addressed before because no former President ever been prosecuted for keeping records — Presidential or otherwise — after leaving office. She has directed the parties to make some assumptions about how the evidence might come in at trial, and then present to her PROPOSED jury instructions from that perspective. She hasn’t even scheduled a trial date yet because she recognizes there are complicated and difficult issues to resolve first, and one or more of these issues may be a basis for the prosecution — or defense — to take one or more of them to the appeals court.
The attitude reflected in SC Smith’s filing earlier this week is one that is unlikely to get him what he wants — a decision from the Judge, on his desired timeline, regarding her intentions to allow the jury to decide the question of “authorization” as reflected in the statute. In fact, the insolence reflected in the motion could end up doing exactly the opposite. When you decide to play high-stakes poker with a federal judge on pretrial matters, you need to recognize that you might have 5 cards in your hand but the judge can require you to play them face-up. At the same time, the judge has all the rest of the cards in the deck in her hand and isn’t required to show you anything.
These are lessons you internalize over 32 years, having tried 70+ federal jury trials in front of 18+ different federal judges in three different judicial districts.
Now, let’s turn to the filing made by Jack Smith, demanding — and that is not an overstatement — that the Judge address these issues on his preferred timetable.
“Promptly decide”?
“Must inform the parties of that decision well in advance of trial”?
There isn’t even a trial date set. Smith doesn’t like that fact and is powerless to change it — too bad. It is beyond transparent that the ONLY interest he has in a trial date is that it happen before the fall election. That interest has ZERO to do with the merits of the case, and everything to do with how the outcome of the case might impact the outcome of the election.
As for the “authorized” issue and the effect of the PRA on that question, SC Smith knows he has nothing to appeal at this point. There is no jury instruction that the trial judge has said she will give, and an appeals court is not going to jump in and tell a trial judge in the first instance what an instruction should or should not say. Appeals Courts deal with claims of error. That is how you start an appeal brief — what error has been committed in the court below that the appeals court should address? At this point there is no error SC Smith can point to because no decision has been made, and the appeals court would rightly respond to SC Smith that there might not ever be any such error.
You know what else “inject[s] substantial delay into a trial”? Asserting novel theories of criminal liability against a former President related to the retention of administration records that he was — without question — authorized to possess at the time he acquired them.
While I don’t disagree with SC Smith’s point as a general principle of procedure, it is worth noting that citing a procedural rule on how motions should be resolved is only of tangential relevance when making a claim about resolving disputes over possible jury instructions. There is a bit of an “apples to oranges” aspect in doing so since there are no “motions” involving jury instructions.
Before going on further, let’s step back and look at the language of the Espionage Act, and why fashioning a jury instruction that sets forth the elements of the offense is vexing the case. Trump is charged with a violation of 18 U.S.C. Sec. 793(e). That specific section reads as follows (paraphrased to fit the allegations of the indictment):
Whoever having unauthorized possession of, access to, or control over any document … relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation … or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it [shall be punished by law].
The first 31 pages of the indictment reflect a litany of factual allegations about what the documents were, how they came to be at MAL, and how they were handled at various points in time deemed relevant to the ongoing investigation. The description of the alleged crime commited by the former President based on those allegations reads as follows:
The problem for SC Smith begins with the ALLEGATION in this description of the crime that Trump had “unuauthorized possession” of the documents.
What SC Smith wants is a jury instruçtion that tells the jury that Trump’s possession of documents beginning at 12:01 p.m. on January 20, 2021, was “unauthorized” because he was no longer POTUS. He wants the Judge to decide this as a “legal question” and not a question based on the facts presented by the defense. He does not want the issue of “unauthorized possession” to be one made by the jury on a document-by-document basis, that takes into consideration the content of the documents and Trump’s explanation of how/why he caused them to be moved from Washington to Florida near the end of his administration.
What Trump wants — and what the Court has asked to be addressed with proposed jury instructions — is an instruction that addresses the fact that Trump was “authorized” to have possession at the time he ordered the documents sent to Florida. Trump wants to use the “personal” v. “Presidential” distinction under the PRA as a basis to argue that he was entitled to pick and choose what he thought were “personal” records. He further wants to argue that even if the documents contained national defense information, he decision to keep them was based on an mistaken understanding of what the PRA allowed him to do, and not a decision made with the intent to violate the restrictions set forth in the Espionage Act.
Since this issue has never before been part of a criminal prosecution — “unauthorized possession” and continued retention after leaving office are unique to a former President — there is no obvious answer based on prior case law — there is no prior case law.
The Espionage Act was first passed in 1917, and has been amended several times. Section 793(e) under which Trump has been charged was added in 1950. The PRA was passed by Congress in 1978 to deal with disputes that arose in the aftermath of the Nixon administration.
One principle of statutory construction that SC Smith ignores is that statutes passed by Congress must be harmonized wherever possible, and it is not proper to just ignore a later-passed statute because it makes it easier to interpret a new statute in a way that is not helpful to your case.
Whether and top what degree the definitions introduced by the PRA have an effect on what constitutes “authorized” vs. “unauthorized” possession of Administration records with national defense information is an issue never before addressed in the context of a criminal prosecution.
It might seem to make sense to argue “Congress never intended Statute B to have an effect on Statute A", but statutory interpretation doesn’t work that way. The presumption is that Congress meant what it said in both statutes, and if a new statute impacts an old statute, the presumption is that Congress intended that to be the case. An effort to harmonize the two with each other must be made. In Watts v. Alaska in 1981, the Supreme Court wrote:
These cases involve two statutes, each of which, by its literal terms, applies to the facts before us.… Recognizing this, the Secretary invokes the maxim of construction that the more recent of two irreconcilably conflicting statutes governs…. Without depreciating this general rule, we decline to read the statutes as being in irreconcilable conflict without seeking to ascertain the actual intent of Congress… We must read the statutes to give effect to each if we can do so while preserving their sense and purpose.
Thus, it is likely not a correct approach for SC Smith to simply claim the PRA and its definitions are irrelevant and should be ignored. At the end of the day they may not be dispositive on any particular issue, but that is a different question from whether they should be considered at all in the manner suggested by the Trump defense.
A second problem that seems to arise from the theory of prosecution advance by SC Smith is this: An Executive Order is not a statute.
“[T]he element of unauthorized possession depends on the plain language of the statute, Executive Order 13526…”
Really?
I’ll confess his is not an area of studied expertise, but when a statute criminalizes “possession” of a document on the basis that it is “unauthorized”, it is generally for Congress to define what is meant by “unauthorized.” An Executive Order is not drafted or passed by Congress, and what a President writes in an Executive Order about the meaning of “unauthorized” in a statute does not make that Executive Order itself part of that statute.
SC Smith’s filing then went on in great detail about the nature and extent of the investigation it had conducted into the claims made or suggested by the Trump defense team about whether the documents in question were deemed “personal” rather than “Presidential” records under the PRA. This section concedes for purposes of the argument that there might be some merit to the claim that the “unauthorized” element under the statute could be implicated if the documents were “personal” under the PRA. The filing went into extensive detail on all the steps taken to show not such determination was made by Trump in the days prior to the end of his administration with respect to the documents that are part of the indictment.
This passage amuses me in two ways.
First, if the “threshold legal question is purely a matter of law” there should be some citation to some prior court decision that demonstrates this to be a correct statement. When an attorney identifies some issue before the court as a “legal question”, that is telling the judge that it is a matter for the judge to decide and not a jury . To do so it is proper to create the necessary factual record before trial, and have the judge made a decision on that legal question. That is what SC Smith is urging her to do without delay.
But the absence of any a citation following such a claim is generally a reflection of the reality that there is no prior case law identifying the issue as a “legal question,” and the claim that it is such was extracted from the writer’s backside.
”No prior case has ever held this to be true, but you should take my word for it anyway.”
I try to avoid taking positions like that in writing.
Second, whether or not a defense theory is premised on actual evidence — SC Smith CLAIMS it is not — is a question usually reserved for trial where there is a “trier of fact,” i.e., the jury. It is nice that SC Smith has offered to play the role of defense attorney by pointing out for the Court where there is evidence and where there is not evidence in terms of the defense theory of the case. But most defendants in federal criminal cases prefer to have their own attorneys’ advocate the theory of defense on their behalf. Prosecutors tend to do a poor job on behalf of a defendant when doing so.
As I noted above, SC Smith’s filling goes on to cover in great detail what Smith claims the evidence shows as to whether the documents involved are “personal” or “Presidential” under the PRA, and what was learned about Trump’s decision-making on that issue from the investigation conducted by the Special Counsel after this question was first raised. He goes into great detail about how the investigators attempted to find any information/evidence of a decision made by Trump to declassify the documents while he was still in office, or a decision made by him to declare the documents personal records under the PRA before sending them to Florida.
That’s all well and good, but in federal criminal trials the outcome of disputed factual issues that bear on the question of guilt or innocence are determined at trial by a jury— not in pretrial proceedings based on what the prosecution claims the facts to be. That is what juries are for and why they are used. There is no mechanism in the Rules of Criminal Procedure to force a defendant to “road test” his defense theory of the case in order to give the prosecutor a chance to shoot it down before the trial starts.
In fact, because a defendant has no obligation to put on evidence in his defense, there is a strong argument to be made that the Trump defense has no obligation at this stage of the case to respond to Smith’s characterizations of the evidence based on Smith’s investigation. Legal defenses to the alleged crimes are presented during trial to the jury, and the defense can be unfairly prejudiced by forcing a defendant to give the prosecution of preview of what the defense might intend to offer at trial.
What Smith is grasping and flailing for is the functional equivalent of a “summary judgment motion” from civil trial practice. He wants to put on his evidence regarding whether Trump made a determination that the records were personal and not Presidential, and have the Court force Trump to put up any evidence to the contrary. After both sides put forth their evidence on the PRA theory, he wants the Judge to rule there is no factual basis for a defense based on the PRA’s definitions of personal and Presidential, and to not give an instruction that leaves it for the jury to decide.
SC Smith believes it is an incorrect as a matter of law to allow the jury to resolve this issue, as well as that there are no facts upon which Trump can make this defense at trial because there is no evidence he actually made such a distinction at the time he ordered the documents sent to Florida. SC Smith wants the Judge to declare her intentions now on these two issues so that he can take the matter up to the Appeals Court and have a correct ruling dictated back down to her.
This is also tied up in the lefty legal beagle fantasy that it would justify an effort to have the Judge removed from the case for bias. But that is no less a fantasy than the lefty legal beagles beliefs that the Colorado Supreme Court was correct about Trump and the 14th Amendment.
This is where I was mid-day on Thursday, April 4. Prior to finishing, the Florida judge issued an order on two issues related to the above.
First she denied Trump’s motion to dismiss the counts using the definitions in the PRA, finding that the indictment adequately described the documents in question in such a way as to take them out from the PRA’s definition of “personal” records, and she must accept as true the facts as alleged in an indictment for purposes of a motion to dismiss.
Correctly, she noted that this issue MIGHT be raised later at the time of trial if evidence in the case established that there was a bona fide question about the nature of the documents under the PRA’s definition of “personal” and “Presidential.” She did not indicate whether this would be a question she would resolve as a matter of law, or if this would be a question that would be decided by the jury as a factual matter.
More significantly, she fired a shot across SC Smith’s bow, and indicated that she did not take kindly to the nature of his demands for a ruling on the issue of the content of possible jury instructions, or his demand that the matter be resolved on a timetable of his choosing.
This is where the point I made about only one person is wearing a black robe in a federal courtroom comes in handy.
That’s a judicial broadside. What it signals is that the Judge might very well decide that questions about the content of final jury instructions are issues that should wait for the presentation of the evidence at trial in order for the instructions to reflect both the government’s criminal allegations and evidence, and the defense theories and evidence.
That is the normal procedure and it would be a difficult proposition to argue to an appeals court that following the normal procedure is an “error” it should take notice of and correct by mandamus or otherwise.
Mandamus is a remedy that exists when a trial court has only one lawful option, but is refusing to take the step as requested by the litigant. It is quite literally an “order” from the appeals court “mandating” that the trial court take the step that is required rather than do nothing or do the wrong thing.
I cannot imagine any characterization of what the Florida judge has now said that could be a basis to claim her action is “error” that prejudices the prosecution.
She hasn’t done anything. She is merely pondering legal issues disputed between the two sides with the assistance of filings submitted by each pursuant to her Order.
It might be that at the time of trial — if there is ever a trial — that she decides to give a jury instruction that SC Smith believes is an incorrect statement of law and increases the chance of an acquittal as a result.
But once a jury is empaneled and the evidence is submitted, it is virtually impossible to seek and obtain any kind of appeals court review over what is happening. Trials are not paused while one side or the other runs off to the appeals court to cry “Error!”
Appeals Court opinions rejecting appeals of convictions by defendants have been littered since the founding with observations that the Constitution does not promise a trial free of error — that is not the definition of a “fair trial.”
Appeals Court opinions rejecting claims of error resting on erroneous jury instructions have been littered since the founding with observations that the jury instructions in the case must be considered as a whole, and small individual errors in specific instructions are not sufficient to reverse a conviction unless constitutional rights are violated by such instructions.
And this takes me back to the observation I made at the very top:
Trial judges do not get reversed for screwing over the government with rulings that favor a defendant. Trial judges do not like to have a conviction reversed and sent back, requiring them to try the case over again.
When there is an acquittal there is no appeal and therefore no risk of reversal. When there is a conviction, there is the possibility of a reversal on appeal and a retrial.
The trial judge’s primary role is to ensure that both sides receive a “fair trial” — not a perfect trial. But the “trial rights” guaranteed under the Constitution belong only to a defendant, not to the government.
If a Judge is going to err, it is safer to err in a way that favors the defendant. That is not “bias” — that is called “protecting the record” because no trial is free of error. Every prosecutor knows it, and every prosecutor has had to live with it from time to time.
SC Smith has brought a novel case on theories of criminal liability that have never been tested before on a former President. He should not be surprised that not every ruling goes his way.
Get over it.
Thanks for the "inside" baseball terms and analysis for those of us who don't practice criminal law.
I am shocked, mind you, shocked, by the audacity of Judge Cannon to follow the concept of a "fair trial", as you described in your article.
As to SC Smith's actions, I am reminded of the old joke about why lawyers are replacing lab rats in scientific experiments:
1. Lawyers are more plentiful that rats.
2. You don't get emotionally attached to lawyers.
3. You can get (some) lawyers to do things not even a rat would do.
Well done, Ship! (Although you could use an editor!)