Washington – Special Counsel Jack Smith urged a federal judge to keep the Presidential Registration Act out of jury instructions. Secret documents case against former President Donald Trump, according to court documents filed by Smith's group late Tuesday. Prosecutors warned that including the law in the instructions could jeopardize the proceedings, and signaled they would appeal if the judge ruled against them.
Last month, U.S. District Court Judge Eileen Cannon, Smith and Trump's legal teams overseeing the case in Florida asked him to file jury instructions based on two hypothetical scenarios: One, the president has the power to classify any records as private under the Presidential Records Act (PRA). In this situation, Cannon wrote, “neither a court nor a jury” would have the ability to review the decision, which could invalidate much of the special counsel's case against Trump.
In another, a jury could examine a record retained by a former president and find that it is “personal or presidential” under the PRA. In this situation, jurors may find that certain official documents were mishandled.
Federal prosecutors rejected both proposals, writing on Tuesday that the PRA, a 1978 law that preserves White House documents produced during each presidency, “should not play any role in the investigation,” arguing Trump's mishandling of classified records. His presidency ended.
Trump and Smith filed separate motions for jury instructions in the case on Tuesday, although a trial date has not yet been set.
Solicitors said on Tuesday Both of Cannon's hypothetical scenarios “rest on an unstated and fundamentally flawed legal premise.” Any arbitration instructions incorporating the PRA will be “destroyed[ing] investigation,” they said.
Instead, the special counsel recommended that the justices decide only three elements of the case, rather than whether Trump knowingly retained national security information without federal authorization.
Smith's group requested that if the judge wanted to include language related to the PRA, it would allow sufficient time for appeals to higher courts before trial.
The former president's legal team took the opposite view, writing that Cannon “correctly stated the law” when he suggested a jury instruction that would have given Trump too broad authority under the PRA.
“If this case were submitted to a jury — and it should not be — the arbitrator would be forced to resolve factual issues regarding not only the PRA classifications but also the alleged classification status of the documents,” Trump's defense team said. They argued in their petition.
in own Proposed Arbitration InstructionsTrump's legal team suggested to jurors that Trump was authorized to access classified records during his presidency and that certain precedents allow former presidents to access certain documents.
The special counsel charged Trump in a 40-count indictment, 32 of which allege violations of the National Security Act, which makes it illegal to mishandle national security information. The former president was also accused of engaging in an embezzlement scheme as part of an effort to prevent federal investigators from retaining documents with classified identities. The FBI eventually recovered more than 300 sensitive government records from Trump's Mar-a-Lago home, which prosecutors allege he illegally kept.
Trump has pleaded not guilty to all charges and has denied any wrongdoing.
The special counsel, in a midnight filing Tuesday, argued that the question of presidential and private records under the PRA is not a jury question because it is not relevant to Trump's conduct. Instead, it's a legal issue that should be left to a judge, lawyers said.
Trump's legal team has filed several motions to dismiss the case against him, including one on the grounds that the PRA gave Trump “unreviewable discretion” over classified records.
“While President Trump was still President of the United States, for example, many of the documents at issue were packed (presumably by GSA), transported, and delivered to Mar-a-Lago,” they wrote in a February court filing. .
The former president's attorneys also argued that the PRA “prevents judicial review” of the president's records, arguing that the court has no jurisdiction over the matter, which was reflected in Cannon's order seeking input on proposed arbitration instructions.
However, Smith's team pushed back in responding to court filings, writing that the more than 300 documents with classified identities recovered from Trump were “undoubtedly presidential, not personal.”
“Trump is not authorized to keep classified records,” the lawyers said.
The federal investigation into Trump's handling of classified records follows a months-long effort by federal officials to collect what they say are missing documents. Investigators eventually executed a search warrant at his Florida home and club, Mar-a-Lago, in August 2022 after the former president allegedly failed to fully respond to a grand jury subpoena.
In Tuesday's filing, Smith's team again pushed back, saying Trump's use of the PRA — meaning the claim that he has the authority to declare certain government documents private — was “found” as a “fictional” defense of his conduct. Only after the federal investigation was underway. The special counsel said neither communications with his security team nor witness testimony supported Trump's claims throughout the trial.
During its grand jury investigation, prosecutors revealed that the special counsel's office interviewed people close to the former president, including his chief of staff and White House lawyers.
“No one heard Trump say the records were private or that he was responsible for moving boxes to Mar-a-Lago. PRA,” according to the special counsel. “On the contrary, every witness who was asked this question had never heard such a thing.”
However, in response to Cannon's order, Trump's lawyers reiterated their argument that the former president is protected from prosecution under the PRA.
“There is no basis for a jury to second-guess the Office of Special Counsel, this court, or President Trump's document-specific PRA classifications.”
Cannon has yet to rule on any of Trump's motions to dismiss the indictment, and the former president's legal team again urged him to rule in his favor on Tuesday. Two of the former president's aides, Walt Nauta and Carlos de Oliveira, also face charges in the case and filed their own claims, which remain unresolved. Nauta and de Oliveira have pleaded not guilty to conspiring with the former president to obstruct a federal investigation.
The judge has not yet set a trial date in the case — originally scheduled for late May — and has not issued any order regarding Smith's request to reconsider the ruling, which included the names of protected witnesses. He held hearings on both issues on March 1.
Trump initially argued that a trial should not go ahead before the fall election, but acknowledged that August would be possible if the judge decides to proceed. The special counsel pushed for the hearing to begin in July, with Cannon's docket still containing several unresolved motions that are unlikely to be accepted.
