"Bizarre": Legal expert says Judge Cannon's "outlandish" order is "sign of her extreme partisanship"

U.S. District Judge Aileen Cannon, who is overseeing Donald Trump's classified documents case in Florida, issued an order late Monday pertaining to jury instructions for the end of the trial — even though she has not ruled yet on when the trial, which is likely to be pushed from its May start date, will begin.

Cannon requested federal prosecutors and the former president's attorneys submit by April 2 proposed jury instructions concerning national security and presidential record laws connected to two defense motions to dismiss the trial altogether. Her order signaled that the question of whether Trump had legal authority to retain national security documents will still be a key question of the case, which could give Trump a boost at trial, according to CNN.

It also confounded legal experts, in some cases, because of its considerations of the Presidential Records Act, a law that declares records created or received by the president as part of his duties as government property.

"Some commentators have described Cannon’s order as 'unusual.' I would use words like wacko, crazy, loony, nutty, ridiculous, and outlandish, and my terms are probably understatements," Bennett Gershman, a Pace University law professor and former New York prosecutor, told Salon.

The Presidential Records Act (PRA) "makes a clear distinction" between a president's personal records, like diaries and journals, and the official, "non-personal" classified documents Trump is alleged to have willfully retained, Gershman added.

Cannon's exercise is a continuation of last week's hearing in the case, in which the relatively inexperienced, Trump-appointed judge heard Trump's attorneys' argument that the PRA gave him unlimited power to determine which documents he needed to return to the National Archives.

The Justice Department has maintained that Trump's 32 charges under the Espionage Act are unrelated to the PRA and, instead, take up the issue of his retention of U.S. and foreign military secrets without federal protections at his Mar-a-Lago beach club and alleged efforts to thwart government officials' retrieval efforts.

During last Thursday's hearing, Cannon seemed skeptical that Trump's "attack on the Espionage Act," which criminalizes unauthorized possession of national security documents, or embrace of the PRA would offer strong enough arguments to rescue him from a criminal trial, according to The Washington Post. Cannon, however, did suggest that some parts of the GOP frontrunner's arguments could later impact jury instructions.

Jury instructions tell jurors how to weigh the evidence presented in a case ahead of deliberations. Cannon's focus on the matter at this point "suggests she is not only thinking ahead to a trial of the former president, but already zeroing in on the end, rather than the beginning, of such a proceeding," according to The Washington Post.

Cannon's order also suggests she is receptive to some of Trump's claims that the Presidential Records Act allows presidents to lay personal claims to highly classified documents. National security experts, however, have countered that notion, saying that Trump's interpretation is neither what the law states nor how courts have previously interpreted it.

"If the court is so inclined to adopt former President Trump's arguments under the Presidential Records Act, that there is literally wiggle room to debate the question of application, then Judge Cannon might as well grant the pending motion as a matter of law," Mark Zaid, a D.C.-based national security attorney, told Salon.

In formulating their instructions, the judge asked the prosecution and defense team to consider, through two hypothetical scenarios, how a jury could be instructed to weigh criminal law around national security documents if Trump could say the Presidential Records Act empowered him to retain them after leaving office. The order also asked the attorneys to define the terms of the Espionage Act.

"The parties must engage with the following competing scenarios and offer alternative draft text that assumes each scenario to be a correct formulation of the law,” Cannon wrote.

Instructions for the first scenario she presented would task the jury with deciding whether prosecutors showed that Trump lacked the authority to keep the classified documents found at Mar-a-Lago, even if they qualified as personal or presidential records. Cannon, according to the Washington Post, included a footnote in the hypothetical permitting discussion of "separation of powers or immunity concerns" if deemed relevant.

Instructions for the second scenario would take the perspective that, as president, Trump had total power through the PRA to take any records he chose from the White House. The second hypothetical appears to offer a circumstance where Trump could not be convicted under "almost any set of facts of improperly possessing classified documents," the Post notes.

The order, Zaid said, is "somewhat mystifying" because Cannon appears to be seeking jury instructions from both parties on issues that "should, and normally would, be determined as a matter of law by the court."

"These issues are not within the purview of a jury to decide," he added.

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A trial typically asks opposing counsel to draft proposed instructions for a jury, Gershman explained, but a judge's instructions to the group require the judge to explain to the jurors the relevant legal principles and ask them to then apply those principles to the facts and evidence of the case.

Cannon's first hypothetical instead asks the jury to "determine the law" surrounding the question of Trump's authority to retain classified records, while the second "in effect advises the jury that if the president believed he was not violating the law, then the jury should find him not guilty," Gershman said.

Why Cannon would issue an order pertaining to end-of-trial jury instruction before solidifying the start date for the trial, which is widely expected to be pushed from May 20 due to pre-trial delays, remains unclear.

Zaid expects the Justice Department will object to the exercise because of the power it could afford the jury to "decide what is or is not a personal record under the PRA."

"How does one read a bizarre order like this except to realize that Judge Cannon lacks experience, is out of touch with the law and criminal trials, lacks an understanding of the proper function of a judge, and lacks an appreciation of the proper role of a judge in our legal system," Gershman added, echoing widespread criticism from legal experts of Cannon's limited experience as a judge and decisions in the case perceived to be favoring Trump thus far.

The order, he said, goes beyond being a simple "sign of her extreme partisanship."

"It portends that if the case ever comes to trial, she will make every effort through her rulings on evidence, controlling lawyer arguments to the jury, and jury instructions, to ensure that Trump is found not guilty," Gershman said. "The government can’t appeal an acquittal."