Special Counsel Jack Smith’s reply to Judge Aileen Cannon’s request for jury instructions starts with a strong rebuke of the judge’s order, stating the premise of the argument set forth is wrong:

The Court has issued an order (ECF No. 407) directing the parties to file preliminary proposed jury instructions and verdict forms for Counts 1-32 of the Superseding Indictment, with a specific requirement that the parties “engage with [two] competing scenarios and offer alternative draft text that assumes each scenario to be a correct formulation of the law to be issued to the jury.”  Both scenarios rest on an unstated and fundamentally flawed legal premise—namely, that the Presidential Records Act (“PRA”), and in particular its distinction between “personal” and “Presidential” records determines whether a former President is “[]authorized,” under the Espionage Act, 18 U.S.C. § 793(e), to possess highly classified documents and store them in an unsecure facility, despite contrary rules in Executive Order (“EO”) 13526, which governs the possession and storage of classified information.

That legal premise is wrong, and a jury instruction for Section 793 that reflects that premise would distort the trial. The PRA’s distinction between personal and presidential records has no bearing on whether a former President’s possession of documents containing national defense information is authorized under the Espionage Act, and the PRA should play no role in the jury instructions on the elements of Section 793. Indeed, based on the current record, the PRA should not play any role at trial at all.  [Some citations removed.]