By Andrew Goudsward
WASHINGTON (Reuters) - The U.S. prosecutor leading the case against Donald Trump for retaining classified documents after leaving office pushed back on a federal judge after she signaled she may accept the former president's claim that the records were his personal property.
U.S. Special Counsel Jack Smith said in a court filing late on Tuesday that his office would appeal any decision by U.S. District Judge Aileen Cannon that would instruct jurors in the case to consider what he called Trump's "fundamentally flawed legal premise."
Trump, the Republican candidate challenging Democratic President Joe Biden in the Nov. 5 election, pleaded not guilty last year to a 40-count indictment accusing him of illegally keeping classified documents after leaving office in 2021 and obstructing federal government efforts to retrieve them.
Cannon, who was appointed to the bench by Trump, has signaled she is receptive to Trump's claim that he treated the documents as personal under a 1978 law called the Presidential Records Act that lets former presidents keep records that have no connection to their official responsibilities.
Prosecutors have said the documents relate to U.S. military and intelligence matters, including details about the American nuclear program, and could not be construed as personal.
The judge on March 18 directed the prosecution and defense to propose jury instructions based on two legal scenarios assuming Trump's argument would play a role at trial.
One scenario, in which neither the jury nor the judge could question Trump's contention that the records are personal, would essentially direct the jury to acquit Trump, according to prosecutors. They urged Cannon to quickly decide if jurors will be told that Trump's claim is relevant to the charges against him, arguing that the prosecution must have time "to consider appellate review."
Smith's filing said Cannon's order was based on a flawed legal premise and would "distort the trial."
This is one of four criminal cases that Trump faces. He has pleaded not guilty in all of them and has sought to cast them as politically motivated.
Trump's lawyers in a filing on Tuesday night reiterated their argument that what they call Trump's decision to treat the records as personal meant the charges should be tossed out before trial.
The Presidential Records Act was passed to give the U.S. government possession of official records from a president's administration. It lets former presidents keep certain records deemed personal that have no connection to their official responsibilities.
Trump has argued that his decision to take the material to his Mar-a-Lago estate in Florida showed he treated the records as his personal property. Prosecutors have argued that the records law cannot authorize a former president to keep classified information.
Trump faces charges that include violations of the Espionage Act, which criminalizes unauthorized possession of defense information, and conspiracy to obstruct justice.
A May 20 trial date scheduled in the case is widely expected to be postponed.