As the judge presiding over the federal prosecution of Donald Trump for hoarding classified documents from his Florida estate, Aileen Cannon has had questionable influence from the start. She has consistently caved to Trump’s far-fetched legal arguments and overall strategy of delay.

But her latest order confirmed that Cannon has really crossed the line by interfering with the former president who benched her.

The order, issued by Cannon on Monday evening, concerns one of Trump’s recurring and baseless arguments for dismissing the charges. His lawyers argue that the Presidential Records Act gave him the power to reclassify all documents as personal, and that he did this just by putting them in the banker’s boxes he transported to Mar-a-Lago.

This frivolous argument would go nowhere in most federal courts. It is an insensitive reading of the law, which was intended to clarify that, aside from a small number of personal belongings such as diaries, presidential archives belong to the people and not to an outgoing president.

Moreover, the argument is beside the point. However the documents Trump stole are characterized, it remains a crime under the Espionage Act to intentionally withhold national defense information, which is clear from the documents at the heart of this case.

However, Cannon’s order does not address Trump’s arguments on the merits. Instead, it instructs each party to file two sets of proposed jury instructions addressing different legal conclusions about the records law. The problem is that both conclusions are directly contrary to the law.

Cannon’s first scenario assumes that a jury must actually determine whether the government has proven beyond a reasonable doubt that the documents Trump absconded with are presidential and not personal. In other words, what if Trump’s claim that he magically turned the classified documents into his personal property were a valid factual defense instead of a meritless legal claim?

The second scenario is even crazier because it assumes that a president has unchecked authority to categorize documents as personal. If the jury were given this assignment, it would be tantamount to ensuring Trump’s acquittal.

Cannon’s order doesn’t just make legal sense. It is also bizarre and pernicious.

It is a completely crazy way to respond to Trump’s motion to dismiss the case on the basis of the records law. It is utterly surreal to ask the parties to draft jury instructions based on a legal fiction, a legal fantasy months before a jury is selected. I have never seen a remotely comparable order.

Cannon began her difficult handling of the case with a similarly inexplicable ruling that allowed Trump to challenge the Mar-a-Lago search warrant. The 11th Circuit Court of Appeals overturned that ruling in stark terms that raised the prospect that another such lawless accident could lead to the judge’s removal from the case.

That would dramatically change the legal and political course of events. The charges against Trump are so cut and dry that another judge could easily expedite the case toward a likely and serious criminal conviction well before the November election.

That’s where the pernicious aspect of Cannon’s order comes into play. Even as the judge has entertained Trump’s quarter-baked theories and helped him eat the clock, she has studiously avoided issuing an order that could give special counsel Jack Smith’s team an opening to appeal. and seek her revenge.

Her latest order is a good example of this: it contains legal conclusions that could lead to a quick reversal and force her recusal, but it only requires the parties to ‘engage’ in these lawless assumptions, which a court of profession does not have much to offer. grasp. In short, Cannon is making mischief in Trump’s favor while dodging appellate scrutiny.

The judge appeared to use a similar move in her ruling last week. While she denied Trump’s futile motion to dismiss the case on the grounds that the Espionage Act is unconstitutionally vague, she left open the prospect that his lawyers could raise the issue again after a trial begins.

Cannon’s latest order also appears to clear the way for an acknowledgment of Trump’s ridiculous legal claims in the jury instructions. That’s a particularly ominous prospect because at that point a jury would have been impaneled and the double jeopardy clause would preclude a new trial.

Cannon may have found a strategy that gives Trump the delay he wants and then dismisses the case once a jury is sworn in, while never exposing himself to the 11th Circuit’s curb or forced closure of the case.

All this means that Smith is faced with a difficult choice. He may adhere to the letter of the judge’s order and agree that he may be laying the groundwork for dismissing the case at an irremediable point. Or he can refuse to go along, risk Cannon’s wrath, and try to allow the prosecutor to appeal if she actually does something verifiable.

It’s not an easy decision, especially when the referee appears to be playing for the other team.

Harry Litman is the host of the

Talking Feds Podcast

and the

Speaking of San Diego

speaker series.

@harrylitman