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 Case of classified documents against former president Donald TrumpAccording to court documents filed late on Tuesday, Smith’s team has a claim. Prosecutors warned they could be jeopardizing proceedings by including the law as part of the instructions. They indicated that if the judge ruled against them, they would appeal.

Last month, U.S. district court judge Aileen CannonIn one hypothetical scenario, the president could categorize records as “personal” under the Presidential Records Act. Cannon wrote in this scenario that “neither the court nor the jury” would be able to review the decision. This finding could nullify a large part of the special counsel’s case against Trump. 

In the second case, the jury could examine a document that was retained by an ex-president and determine whether it was “personal” or “presidential” under the PRA. Under this scenario it is possible that jurors will find that certain official documents have been 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 each submitted separate proposals for jury instruction in the case on Tuesday, though a trial date is still to be determined. 

Prosecutors Tuesday Cannon’s hypothetical scenarios are “based on an unstated, fundamentally flawed legal presumption.” Any jury instructions which include the PRA could “distort”.[ing] “The trial,” they said.  

The special counsel suggested that jurors only need to decide three elements of the case, which are whether Trump intentionally retained national defense information with no authorization from the federal government. 

Smith’s legal team requested that, in the event the judge included language relating to the PRA before trial, she allow them ample time to appeal this matter to higher court. 

The former president’s legal team held the opposite view. They wrote that Cannon “correctly stated the laws” when she suggested a jury instruction which would have granted Trump a much broader range of power under 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 In their filing, they argued. 

In their own Proposed jury instructionsThe legal team for Trump suggested that Cannon tell the jury that Trump had been authorized to access classified records during his tenure as president and that certain precedents allowed former presidents access to certain documents. 

The special counsel has charged Trump with a 40-count criminal indictment, which includes 32 alleged breaches of a law on national security that makes it illegal to mishandle defense information. Former President Trump is also accused in a 40-count indictment of obstruction of justice as part of a alleged attempt to thwart federal agents investigating his retention documents with classified markings. The FBI recovered over 300 sensitive documents from Trump’s Mar-a-Lago property that prosecutors accused Trump of illegally keeping. 

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

The special counsel’s late-night Tuesday filing argued that this question of presidential versus personal records under the PRA was not one for a juror because it didn’t apply to Trumps alleged conduct. Prosecutors argued that this is a question of law and should be decided by the judge. 

Trump’s legal team filed a number motions to dismiss the charges against him. One of them argued that the PRA gave Trump “unreviewable” discretion over classified records.

In a court filing in February, they stated that “President Trump still was the President of the United States at the time, for example, when many of the documents were packed, transported and delivered to Mar-A-Lago by the GSA.” 

Attorneys for former president also argued the PRA “precludes any judicial review” of a president’s recordskeeping, arguing that the court does not have jurisdiction in the matter. The language used in Cannon’s request for input on proposed jury instructions reflected this argument. 

Smith’s legal team, on the other hand, reacted in court documents, stating that more than 300 classified documents recovered from Trump are “indisputably presidential and not personal.” 

Prosecutors said that Trump was not authorized by law to possess classified documents. 

The federal probe into Trump’s handling of classified documents followed a month-long effort from federal officials to gather what they said were lacking documents. Investigators eventually executed a warrant at his Florida home and club, Mar-a-Lago. This was after the former president failed to fully comply with a grand jury’s 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 prosecutor said that neither Trump’s claims nor the communications between his defense team and him during the investigation are supported by witness testimony. 

The special counsel’s office revealed that, during its grand juries investigation, it interviewed individuals close the former president including his chiefs and staff and top White House Lawyers. 

According to the special counsel, “not a single witness had heard Trump say he was designating documents as personal, or that at the time that he caused the boxes to be transferred to Mar-a-Lago he believed his removal of records amounted designating them under the PRA.” “On the contrary, each witness who was questioned about this had never heard of such a thing.”

Trump’s attorneys, in response to Cannon’s order, reiterated that the former President was shielded by the PRA. 

“There is no basis for this Court or a jury, to second-guess the President Trump’s document specific PRA categorizations.” 

Cannon is yet to rule on Trump’s motions for dismissal of the indictment. On Tuesday, the former president’s legal team again urged Cannon to rule in Trump’s favor. Walt Nauta, a former aide to the president, and Carlos de Oliveira also face charges and have filed their own motions. These are also unresolved. Nauta, de Oliveira and other former president’s aides have pleaded not-guilty to allegations that they conspired with him to obstruct federal investigations.

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 March 1 hearing on these issues.

Trump had originally argued for a trial to be held after the fall election. However, if the judge decided to proceed, Trump conceded that an August trial would be possible. The special counsel requested that the trial begin in July. However, this proposal is less likely to succeed, since Cannon’s docket still has several unresolved appeals.