By Andrew Goudsward
WASHINGTON (Reuters) - A federal judge overseeing the criminal case that accuses Donald Trump of mishandling classified documents has signaled an openness to the former U.S. president’s defense claims, in a sign that prosecutors might face a difficult road ahead.
U.S. District Judge Aileen Cannon, who was nominated to the bench by Trump, has asked Trump and prosecutors to propose jury instructions based on two legal scenarios that favor a claim from Trump that national security lawyers said have little relevance to the charges.
Trump and Special Counsel Jack Smith, who brought the case, face a Tuesday deadline to respond to the judge’s order.
The dispute is another instance of Cannon lending credence to Trump's legal arguments about highly sensitive records taken to his Mar-a-Lago estate in Florida when he left the White House in 2021.
While Trump has clashed with judges in many of his legal cases, Cannon has been receptive to his defense in ways that could alter the course of the documents case.
“You have a court who is more favorable to the views of one party versus the other, and you’re seeing orders and decisions that are reflective of that,” said Brandon Van Grack, a former Justice Department national security official.
Trump has pleaded not guilty to charges accusing him of knowingly retaining secret records related to the U.S. national defense and obstructing efforts by the U.S. government to retrieve them.
The prosecution is one of four facing Trump as he seeks to unseat Democrat Joe Biden in the Nov. 5 presidential election. Trump has cast the cases as part of a politically motivated effort to damage his campaign.
At issue in Cannon’s recent order is Trump’s claim that he treated the documents as personal under a 1978 law that allows former presidents to keep records that have no connection to their official responsibilities.
Trump’s lawyers argue his decision to keep the records shows that he deemed them to be his personal property.
Prosecutors have said the documents could not be construed as personal because they relate to U.S. intelligence and military matters. The records law could not authorize Trump to keep classified papers, they said.
Cannon expressed skepticism at a March 14 court hearing that Trump’s claim requires the charges to be tossed out, but said it may prove “forceful” at a future trial.
She later ordered dueling sets of proposed jury instructions, assuming either that the government would have to prove the records belong to the government, or that neither the judge nor the jury could question Trump’s stance that they are personal.
“Both of them are completely irrelevant,” Kel McClanahan, a national security lawyer who has represented members of the U.S. intelligence community, said of the competing scenarios. “And both actually favor the defendant.”
Mark Zaid, a defense lawyer who has worked on cases involving classified information, said he is unaware of an instance when a document produced by a federal agency was declared a personal record by a president.
Allowing a jury to consider those claims would “give Trump a fighting chance in a jury trial that would never likely exist in another case,” Zaid said.
A trial date remains uncertain. Cannon has not yet ruled on competing proposals from Trump and prosecutors to delay the currently scheduled May 20 trial until later this summer.
Cannon has escaped the ire Trump has directed at judges overseeing his other legal cases, who he has frequently accused of bias and criticized in personal terms.
Cannon ruled in Trump’s favor in a legal challenge to the investigation filed before charges were brought, which was later reversed by a federal appeals court.
She has signaled support for some of Trump’s other arguments, including his request for more records from the Biden administration to attempt to build a case that the investigation was politically motivated.
In a setback for Trump’s defense, Cannon last month rejected an attempt to invalidate the central charge against him – willfully retaining classified information. Cannon said Trump’s lawyers could raise the issue later, noting it raised arguments “warranting serious consideration.”