Jack Smith argues "not a single" Trump official has claimed he declared any records personal

Washington — Special counsel Jack Smith urged a federal judge to keep a presidential recordkeeping law out of instructions that would be provided to the jury in the classified documents case against former President Donald Trump, according to court documents filed by Smith's team late Tuesday. Prosecutors warned that including the law in the instructions risked jeopardizing the proceedings, and signaled they would appeal the judge's decision if she ruled against them.

Last month, U.S. District Court Judge Aileen Cannon, who is overseeing the case in Florida, asked Smith's and Trump's legal teams to file jury instructions based on two hypothetical scenarios: in one, the president has the authority under the Presidential Records Act (PRA) to categorize any records as personal. Under this scenario, Cannon wrote that "neither a court nor a jury" would have the ability to review the decision, a finding that could nullify much of the special counsel's case against Trump. 

In the other, the jury would be able to examine a record that had been retained by a former president and make a finding that it was either "personal or presidential," under the PRA. Under this scenario, it is possible jurors could find that some official documents were mishandled. 

Federal prosecutors rejected both proposals and wrote Tuesday that the PRA — a 1978 law that manages the maintenance of White House documents produced during each presidency — "should not play any role at trial at all," arguing that Trump's alleged mishandling of classified records occurred after his presidency ended.

Trump and Smith filed separate proposals for jury instructions in the case Tuesday, although a trial date has yet to be set. 

Prosecutors said Tuesday that both of Cannon's hypothetical scenarios "rest on an unstated and fundamentally flawed legal premise." Any jury instructions that include the PRA risked "distort[ing] the trial," they said.  

Instead, the special counsel suggested jurors should only have to determine three elements of the case that amount to whether Trump willfully retained national defense information without the authorization of the federal government. 

Smith's team requested that if the judge opts to include language concerning the PRA, she affords them ample time to appeal the matter to higher courts ahead of trial. 

The former president's legal team took the opposite view, writing Cannon "correctly stated the law" when she suggested the jury instruction that would have granted Trump much broader power under the PRA. 

"If this case is presented to a jury—which it should not be—the jury would be forced to resolve factual issues relating to not only PRA categorizations but also documents' alleged classification status," Trump's defense team argued in their filing. 

In their own proposed jury instructions, Trump's legal team suggested Cannon tell jurors that Trump was authorized to access the classified records during his presidency and that certain precedents allow for former presidents to access certain documents. 

The special counsel charged Trump in a 40-count indictment that includes 32 alleged violations of a national security law that makes it illegal to mishandle national defense information. The former president is also accused of engaging in an obstruction scheme as part of an alleged effort to thwart federal investigators as they probed his retention of documents with classified markings. The FBI ultimately recovered over 300 sensitive government records from Trump's Mar-a-Lago residence that prosecutors accused him of illegally keeping. 

Trump pleaded not guilty to all counts and has denied any wrongdoing. 

Tuesday's late-night filing from the special counsel contended that the question of presidential versus private records under the PRA is not a question for a jury because it doesn't apply to Trump's alleged conduct. Instead, prosecutors said this was a matter of law that should be left up to the judge. 

Trump's legal team has filed a number of motions to dismiss the case against him, including one on the grounds that the PRA granted Trump "unreviewable discretion" over classified records.

"President Trump was still the President of the United States when, for example, many of the documents at issue were packed (presumably by the GSA), transported, and delivered to Mar-A-Lago," they wrote in a February court filing. 

Attorneys for the former president also argued that the PRA "precludes judicial review" over a president's recordkeeping, contending that the court has no jurisdiction in the matter, language that was reflected in Cannon's order asking for input on the proposed jury instructions. 

Smith's team, however, pushed back in responding court filings, writing that the more than 300 documents with classified markings recovered from Trump "are indisputably presidential, not personal." 

"Trump was not authorized to possess classified records at all," prosecutors said. 

The federal probe into Trump's handling of classified records followed a months-long effort by federal officials to collect what they said were missing documents. Investigators ultimately executed a search warrant at his Florida residence and club, Mar-a-Lago, in August of 2022, after the former president allegedly failed to fully respond to a grand jury subpoena. 

In Tuesday's filing, Smith's team again pushed back, alleging that Trump's use of the PRA — namely the claim that he had the power to declare certain government documents as personal in nature — was "invented" as a "fictional" defense for his alleged conduct only after the federal probe was underway. The special counsel said neither communications with his defense team throughout the investigation nor witness testimony backs up Trump's claims. 

Prosecutors revealed that during its grand jury investigation, the special counsel's office interviewed individuals close to the former president, including his chiefs of staff and top White House lawyers. 

"Not a single one had heard Trump say that he was designating records as personal or that, at the time he caused the transfer of boxes to Mar-a-Lago, he believed that his removal of records amounted to designating them as personal under the PRA," according to the special counsel. "To the contrary, every witness who was asked this question had never heard such a thing."

In response to Cannon's order, however, Trump's lawyers reiterated their contention that the former president was shielded from prosecution under the PRA. 

"There is no basis for the Special Counsel's Office, this Court, or a jury to second-guess President Trump's document-specific PRA categorizations." 

Cannon has yet to rule on any of Trump's motions to dismiss the indictment, and the former president's legal team urged her again on Tuesday to rule in his favor. Two of the former president's aides, Walt Nauta and Carlos de Oliveira, also face charges in the case and filed their own motions, which also remain unresolved. Nauta and de Oliveira pleaded not guilty to allegations that they worked with the former president to obstruct the federal probe.

The judge has yet to set a trial date in the case — originally scheduled for late May — and has not issued any order related to a request from Smith that she reconsider a ruling tied to protected witness names. She held a hearing on those two issues on March 1.

Trump originally argued that a trial should not go forward before the fall election, but conceded that August would be feasible, should the judge decide to proceed. The special counsel pushed for the trial to begin in July, a proposal that seems less likely to be adopted, since Cannon's docket still contains several unresolved motions. 

In:
• Donald Trump
• Florida
• Jack Smith

Robert Legare

Robert Legare is a CBS News multiplatform reporter and producer covering the Justice Department, federal courts and investigations. He was previously an associate producer for the "CBS Evening News with Norah O'Donnell."