Re: Cannon: 11th circuit already said Trump lacked a personal or possessory interest in the records

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Roger Parloff @rparloff
Judge Cannon is asking the parties to "engage with" these two proposed jury instructions. Both are disturbing; the second comes close to a directed verdict of acquittal.

Bradley P. Moss @BradMossEsq
Thx to @emptywheel for reminding me that the 11th circuit already said Trump lacked a personal or possessory interest in the records. DOJ’s response to this order from Cannon will be … interesting.



Ben Meiselas @meiselasb
Judge Cannon just issued an order requesting the parties “engage” with two hypothetical scenarios for potential jury instructions regarding the espionage act as applied to Trump’s willful retention of national defense information. Both hypotheticals are legally flawed and assume Donald Trump, as a former president, has special powers to willfully retain national defense info (he does not). It’s unclear what she even means by having the parties “engage with” these hypotheticals. Both hypotheticals are egregious and the second one is extra egregious since she wants to the government to accept as true that Trump has the sole ability to designate national defense information as his personal property and somehow instruct a hypothetical future jury on this. As I read it, she is asking Jack Smith to “engage” with two scenarios that both violate the law which he should not do. Is she setting a trap that if he responds to the scenarios she than tries to act like the government has accepted both these legally flawed scenarios as true or allowed?It’s such an unusual and unprecedentedly bizarre and dangerous order. But if I am Jack Smith I am thinking if this constitutes a “final order” for purposes of an interlocutory appeal and telling the 11th Circuit that both of these scenarios violates clearly established law and so an appeal is needs since the government can’t be compelled by a judge to “engage” with situations that violate the law.

Bradley P. Moss @BradMossEsq
This second scenario is legally insane. If that were the case, then just grant Trump’s motion to dismiss on PRA grounds so DOJ bring it to the 11th circuit for a quick reversal.

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