Legal experts reveal how judge's ruling against Trump is actually a victory for him: 'Not what Jack Smith wanted to hear'

United States District Judge Aileen Cannon rejected on Thursday Donald Trump's motion to dismiss his classified documents case on the basis that the Presidential Records Act permitted him to retain classified documents.

The decision seemingly hands special counsel Jack Smith a pretrial victory. However, legal experts believe Trump was the real winner of Cannon's latest decision.

The background

Last month, Judge Cannon asked both special counsel Jack Smith and Trump's defense team to prepare potential sets of jury instructions incorporating his PRA defense.

The first set of instructions:

In a prosecution of a former president for allegedly retaining documents in violation of 18 U.S.C. § 793(e), a jury is permitted to examine a record retained by a former president in his/her personal possession at the end of his/her presidency and make a factual finding as to whether the government has proven beyond a reasonable doubt that it is personal or presidential using the definitions set forth in the Presidential Records Act (PRA).

The second set:

A president has sole authority under the PRA to categorize records as personal or presidential during his/her presidency. Neither a court nor a jury is permitted to make or review such a categorization decision. Although there is no formal means in the PRA by which a president is to make that categorization, an outgoing president’s decision to exclude what he/she considers to be personal records from presidential records transmitted to the National Archives and Records Administration constitutes a president’s categorization of those records as personal under the PRA.

In a filing on Tuesday, Smith blasted Cannon for indulging what he believes is a legal defense made of "pure fiction."

Smith argued that "both scenarios rest on an unstated and fundamentally flawed legal premise," arguing the "PRA should not play any role at trial at all." To allow the defense into trial, Smith claimed, would "distort the trial."

The special counsel, moreover, threatened to seek pretrial appellate review — an unusual move — if Cannon allows the jury to hear Trump's PRA defense.

To be clear, we do not yet know if Cannon will allow Trump's attorneys to use the PRA defense at trial. Her request for potential jury instructions merely shows that she is considering how, if at all, it may fit into the trial.

Still, Smith demanded that Cannon immediately decide if she will allow the defense into trial.

Cannon's latest ruling

On Thursday, Cannon rejected Trump's motion to dismiss the case but signaled that Trump could possible use the PRA defense at trial.

More importantly, Cannon scolded Smith for making "unprecedented and unjust" demands.

"The Court's Order soliciting preliminary draft instructions on certain counts should not be misconstrued as declaring a final definition on any essential element or asserted defense in this case. Nor should it be interpreted as anything other than what it was: a genuine attempt, in the context of the upcoming trial, to better understand the parties’ competing positions and the questions to be submitted to the jury in this complex case of first impression," she explained.

That Cannon left open the possibility that Trump may resurrect his PRA defense at trial is a win for him, legal experts said.

"Instead of the judge saying, 'OK of course, [Trump's argument is] ludicrous.' She just said, 'I'm not deciding that pretrial. I might let that happen during the trial and maybe that's what I'll decide — in the midst of the trial. Now I'll actually say, "Oh, those are your personal documents. I issue a judgment for acquittal."' That's called Rule 29," explained law professor Ryan Goodman on CNN.

"She could do it in the middle of the trial and then it's too late. That is not appealable," he said.

Goodman then observed that Cannon's ruling at first appears to be a "loss" for Trump, "but not really."

"I think this is not what Jack Smith wanted to hear," he explained.

Former federal prosecutor Elie Honig agreed. He said on CNN that Cannon's decision is "impossible" to appeal, and Smith should be worried.

"This is why I think Jack Smith is concerned with today's ruling. Although he won — in the sense that the court did not dismiss the charges — if I'm Jack Smith? And I think Smith feels the same way, I'm very worried about this defense going to a jury because it's confusing, because it's complicated, because it's technical," Honig explained.

"Prosecutors always want to tell a simple, straightforward story. And frankly, defendants want to muck things up," he continued. "And as much as I think this defense lacks merit, I do think it could confuse a jury in a way that would worry me, as a prosecutor."

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