Federal prosecutors reprimanded the judge who presided over former President Trump’s confidential documents case in Florida, warning her about possible jury instructions that they say rest on a fundamentally flawed legal premise.

In an unusual move, U.S. District Judge Aileen Cannon had asked prosecutors and defense attorneys to formulate proposed jury instructions on most charges, even as it remains unclear when the case could go to trial. She asked the attorneys to respond to two different scenarios in which she appeared to accept the Republican ex-president’s argument that he had a right under a statute known as the Presidential Records Act to keep the sensitive documents he he is now accused of possessing it.

The order surprised legal experts and alarmed special counsel Jack Smith’s team, which said in a filing late Tuesday that the 1978 law that requires presidents to return presidential records to the government when leaving office but allows them purely personal to retain data is not relevant in a case involving highly classified documents such as those that Trump is said to have stored at his Mar-a-Lago estate in Palm Beach, Florida.

Those documents were clearly not personal, according to prosecutors, and there is no evidence that Trump ever identified them as such. They said the suggestion that he did so was only made up after it emerged that he had taken boxes of White House documents to Mar-a-Lago after his presidency and that none of the witnesses they interviewed in the investigation supported this . his argument.

No one heard Trump say that he marked documents as personal or that, at the time he caused the transfer of boxes to Mar-a-Lago, he believed that his removal of documents amounted to marking documents as personal under the PRA. ,” the prosecutors wrote. On the contrary, every witness who was asked this question had never heard anything like it before.

Smith’s team said that if the judge insists on mentioning the Presidential Records Act in her jury instructions, she should let attorneys know as soon as possible so prosecutors can appeal.

The filing reflects prosecutors’ continued exasperation with Cannon’s handling of the case.

The Trump-appointed judge has yet to rule on multiple defense motions to dismiss the charges, as well as other disagreements between the two sides, and the trial date remains uncertain, indicating that a criminal case that the team at Smith says there is overwhelming evidence that could remain unsolved. by the time of the November presidential election.

Cannon, who previously faced blistering criticism over her decision to grant Trump’s request for an independent arbitrator to review documents obtained during an FBI investigation into Mar-a-Lago, heard arguments last month about two of Trump’s proposals to dismiss the case, including that the Presidential Records Act allowed him to designate the documents as personal and therefore keep them.

The judge seemed skeptical about that position, but did not immediately rule. Days later, she asked the two sides to draft jury instructions that addressed the following premise: A president has exclusive authority under the PRA to categorize documents as personal or presidential during his/her presidency. Neither a court nor a jury may make or review such a categorization decision.

An outgoing president’s decision to exclude personal documents from those returned to the government, she continued, constitutes the president’s categorization of those documents as personal under the PRA.

That interpretation of the law is wrong, prosecutors said. They also urged Cannon to take swift action in denying the defense’s motion to dismiss.

The PRA distinction between personal and presidential records has no bearing on whether a former president’s possession of documents containing national defense information is permitted under the Espionage Act, and the PRA should have no role in jury instructions about the elements of Section 793, they said. , citing the statute that makes it illegal to illegally withhold national defense information.

Based on its current track record, the PRA should not have any role at all in the process, she added.

Trump, the Republicans’ presumptive 2024 nominee, faces dozens of criminal charges related to the mishandling of classified documents, according to an indictment alleging he improperly disclosed a Pentagon attack plan and a secret map related to shared a military operation. The Florida case is one of four criminal cases against the former president, who insists he did nothing wrong in any of them.

In a separate filing from the Trump team, lawyers renewed their demand that Cannon dismiss the charges.

Tucker writes for the Associated Press.