She wrote a few days ago.......
"We discussed this request when the Judge first issued it in this post, all the way down at the bottom. The Judge issued this order in lieu of ruling on Trump’s request to dismiss the case under the Presidential Records Act. Instead, she seems to be telling the parties she’s going to decide it applies, but ask them to give her alternative jury instructions for two different situations, depending on how she decides it applies. In the first scenario, it’s up to the jury to decide whether each classified document was magically morphed into a personal item by Trump before he left the White House. In the second scenario, it’s all up to Trump. If he testifies or somehow adduces evidence at trial he designated the records he’s charged with retaining as personal, no one, not even the jury, can second guess him. Cannon doesn’t say it in her order, but that can only mean the charges would be due to be dismissed.
This is nuts—it’s up to the Judge to decide in the first instance whether the Presidential Records Act applies at all here. Juries resolve factual disputes. It’s up to the Judge to decide what the law says. And there is literally no authority that suggests that the Presidential Records Act somehow means you can’t prosecute someone who mishandles National Defense information. The Judge should have dismissed Trump’s motion out of hand, and if she had granted it, the government could have taken an appeal.
That’s the heart of the problem here, as I’ve discussed before. By kicking the can down the road to trial, she’s setting up a scenario where she could rule in Trump’s favor and dismiss the case after a jury was sworn in. And at that point, the government couldn’t appeal. That’s because of double jeopardy. The government can’t try a defendant twice on the same charges, so if Judge Cannon were to dismiss the case after trial started, the government couldn’t appeal her because they couldn’t retry the case even if they won. "
Smith is trying to force her hand in this ruling and use it for an appeal to the 11th District court!
= new reply since forum marked as read