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Mark Esper and Donald Trump Ex-Trump defense secretary explains why he could end up voting for Biden 02:44 Tim Walberg vpx Video appears to show GOP Congressman suggesting dropping bombs on Gaza 01:24 033124 Rep. Lawler SOTU vpx Bash asks GOP lawmaker if Republicans are on the wrong side of IVF debate. Hear his response 01:43 Biden Trump SPLIT 020124 Trump posted this controversial picture on social media. Hear how Biden responded 03:37 karen adniflo judge cannon split thumb vpx 'Her inexperience is really showing': Ex-DA on judge's 'unusual' move in Trump documents case 01:55 AFG Alyssa Farah-Griffin reacts to Trump calling for debates with Biden at a rally 01:18 hillary clinton fallon Hillary Clinton tells voters to 'get over yourself' when it comes to Biden-Trump rematch 01:38 ryan goodman vpx Trump posts Fox News clip to his social media. Expert thinks it violates gag order 02:08 DALLAS, TEXAS - JULY 11: Former White House Senior Advisor and Director of Speechwriting Steven Miller speaks during the Conservative Political Action Conference CPAC held at the Hilton Anatole on July 11, 2021 in Dallas, Texas. CPAC began in 1974, and is a conference that brings together and hosts conservative organizations, activists, and world leaders in discussing current events and future political agendas. (Photo by Brandon Bell/Getty Images) Here's what Stephen Miller would do on issue of race if Trump wins 03:10 elie Honig 'Incorrect': Honig reacts to Trump's online post after judge expands gag order 01:47 RFK Jr. still ebof vpx RFK Jr. responds to family members voicing disapproval of his run 03:00 rfk jr RFK Jr. tells CNN Biden could be bigger threat to democracy than Trump 02:46 Honig Hear why Honig calls Hope Hicks' testimony a 'game changer' 01:44 TOPSHOT - Voting booths are seen at Glass Elementary School's polling station in Eagle Pass, Texas, on November 8, 2022. (Photo by Mark Felix / AFP) (Photo by MARK FELIX/AFP via Getty Images) Despite racial messages, some Black and Latino voters are backing Trump. Here's why 02:34 matt gaetz michael smerconish intv split Rep. Matt Gaetz defends Trump over Ukraine scandal 03:48 bob good manu raju Hard-right GOP leader is under attack by some in his own party. Hear why 04:33 Mike Lawler Bash SPLIT SCREENGRAB GOP Rep. Lawler 'confident' House will vote on Ukraine funding 02:18 Mark Esper and Donald Trump Ex-Trump defense secretary explains why he could end up voting for Biden 02:44 Tim Walberg vpx Video appears to show GOP Congressman suggesting dropping bombs on Gaza 01:24 033124 Rep. Lawler SOTU vpx Bash asks GOP lawmaker if Republicans are on the wrong side of IVF debate. Hear his response 01:43 Biden Trump SPLIT 020124 Trump posted this controversial picture on social media. Hear how Biden responded 03:37 karen adniflo judge cannon split thumb vpx 'Her inexperience is really showing': Ex-DA on judge's 'unusual' move in Trump documents case 01:55 AFG Alyssa Farah-Griffin reacts to Trump calling for debates with Biden at a rally 01:18 hillary clinton fallon Hillary Clinton tells voters to 'get over yourself' when it comes to Biden-Trump rematch 01:38 ryan goodman vpx Trump posts Fox News clip to his social media. Expert thinks it violates gag order 02:08 CNN — In perhaps prosecutors’ strongest rebuke yet to how Judge Aileen Cannon has handled the classified documents case against former President Donald Trump, special counsel Jack Smith said in court filings late Tuesday evening that the judge had ordered briefings based on a “fundamentally flawed” understanding of the case that has “no basis in law or fact.”

Smith’s team harshly critiqued Cannon’s request for jury instructions that embraced Trump’s claims that he had broad authority to take classified government documents and said it would seek an appeals court review if she accepted the former president’s arguments about his record-retention powers.

In an unusual order last month, Cannon asked attorneys on the classified documents case to submit briefs on potential jury instructions defining terms of the Espionage Act, under which Trump is charged over mishandling 32 classified records. Specifically, Cannon asked the special counsel and defense attorneys to write two versions of proposed jury instructions.

The first scenario would instruct a jury to assess whether each of the records that Trump is accused of retaining fell into the categories of “personal” or “presidential” as laid out by the Presidential Records Act, a post-Watergate law that governs how White House records belonging to the government are to be handled at the end of a presidency.

The second version Cannon asked for assumes that as president, Trump had complete authority to take records he wanted from the White House, which would make it nearly impossible for prosecutors to secure a conviction. If she were to institute this sort of instruction, Smith’s team said, “the Government must be provided with an opportunity to seek prompt appellate review.”

“Both scenarios rest on an unstated and fundamentally flawed legal premise — namely, that the Presidential Records Act and in particular its distinction between ‘personal’ and ‘Presidential’ records, determines whether a former President is ‘authorized,’ under the Espionage Act, to possess highly classified documents and store them in an unsecure facility,” the special counsel’s team wrote.

If allowed to be presented to a jury, prosecutors said, “that premise would distort the trial.”

Cannon’s request came days after she heard arguments over whether the Presidential Records Act granted the former president broad authority to characterize any record from his time in the White House as personal. Trump’s attorneys claim he did have that authority and have asked the judge to throw out the criminal charges.

In their own proposed jury instructions filed Tuesday evening, Trump’s defense attorneys suggested that, in the first hypothetical, Cannon tell trial jurors that Trump was “authorized” by the PRA to “possess a category of documents defined as ‘personal records,’ both during and after his term in office.”

In the second scenario, defense attorneys wrote that “there can be no appropriate jury instructions relating to factual issues … because that scenario forecloses prosecution of President Trump.”

Trump’s proposal also challenges Smith’s ability to prove the former president kept the documents “knowingly,” meaning he was aware it was against the law. “Medical science has not yet devised an instrument which can record what was in one’s mind in the distant past,” Trump’s attorneys wrote.

Prosecutors have repeatedly said that PRA is not relevant to the charges against Trump, as the conduct he is accused of happened after his term as president ended. Trump’s claim that he deemed the records personal are “pure fiction,” invented once the National Archives had retrieved boxes with classified information from Mar-a-Lago two years after he left office, they wrote Tuesday.

Their new filing sheds light on some of the evidence that investigators have collected about Trump’s record-keeping habits during his presidency. According to the prosecutors’ account, there is no evidence that Trump designated the relevant classified records as personal when he left the White House, and the prosecutors said he got the idea that he did have such power many months later, from the leader of a conservative legal organization.

Cannon appeared skeptical that the charges should be outright dismissed during the hearing, but she said that Trump’s attorneys were making “forceful” arguments that may be appropriate to present to a trial jury.

Still, Cannon has not made an official ruling on the request to dismiss the case, and her request for hypothetical jury instructions appear to show that the judge is still considering how, or if, the PRA fits into the case at large.