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Judge in Trump's classified documents case draws scrutiny

(SOUNDBITE OF MONTAGE)

UNIDENTIFIED PEOPLE: (Chanting) We love Trump. We love Trump.

DONALD TRUMP: This is a persecution.

UNIDENTIFIED PERSON #1: He actually just stormed out of the courtroom.

UNIDENTIFIED PERSON #2: Innocent until proven guilty in a court of law.

SCOTT DETROW, HOST:

It's time for Trump's Trials. And this week, we're going to catch you up on everything that has been going on in the Florida classified documents case. The presiding judge, Aileen Cannon, rejected one of former President Trump's motions to dismiss the case against him, which, remember, centers around his alleged possession of classified documents and his resistance to efforts by the federal government to get them back.

But Cannon has continued to issue pre-trial decisions that have a lot of legal experts concerned or confused. And the latest drama has to do with the Presidential Records Act and jury instructions. Here to explain it all is NPR justice correspondent Carrie Johnson, as well as NYU law professor and co-author of the book "The Trump Indictments," Melissa Murray. I started by asking Carrie to explain to us what the Presidential Records Act is.

CARRIE JOHNSON, BYLINE: Sure. The Presidential Records Act was something Congress passed in 1978, after all the controversy surrounding former President Richard Nixon. And Congress wanted to make clear that papers a president gets in the course of his or her job belong to the people, not the president. And they're supposed to be under the control of the National Archives. And Trump has really resisted that at every turn. But that's the start and the end of it.

DETROW: Is it relevant to this case?

JOHNSON: One of his key defenses to these 32 charges of unlawful possession of national security documents is that he had the power to turn those into personal papers. But the special counsel, Jack Smith, says Trump actually concocted this excuse, this defense, more than a year after he left the White House, not a decision that he made while he was the president. And Jack Smith also says Trump never said he explicitly took this step and made these papers personal. Jack Smith says this week in court papers that this whole idea is pure fiction.

DETROW: And, Melissa, that gets to this jury instruction situation. Can you remind us what exactly Judge Cannon did and why this led to so much concern and outcry from a lot of the legal community?

MELISSA MURRAY: The fact that she requested jury instructions on the Presidential Records Act suggested that she was buying in to this alleged defense or explanation that Donald Trump had offered, that, in fact, he was authorized to keep these, and that she was crediting that argument, which many view as specious.

DETROW: And, Carrie, that gets to the special counsel's response to this request from Judge Cannon, really raising concerns about the fact that the way the Presidential Records Act could be treated or viewed in this case is really key and needs to be figured out soon. Why was Jack Smith so concerned about that?

JOHNSON: The prosecutors seem to think this is an existential issue with respect to their case. They said the judge's legal premise with respect to the Presidential Records Act is totally wrong. It has nothing to do with this trial. And they wanted the judge to rule relatively soon because they may want to appeal that issue. They don't want a trial to start and to get into a whole bunch of arguments with the judge about former President Trump's defense and then have the trial underway, the judge make rulings against the Justice Department and the Justice Department basically having no way to appeal and basically double jeopardy attaching. That's what happens after, you know, somebody is prosecuted. You can't prosecute them again. And so it was a very, very powerful set of arguments and a very lengthy filing from Jack Smith's team this week because this issue is essential to the heart of their case. If the judge doesn't decide it soon, it could really hurt the case down the line.

MURRAY: There's also, in criminal procedure, the opportunity for a judge to really kind of intervene in the trial, even after a jury has begun deliberating, to issue what's known as a Rule 29 motion. And on a Rule 29 motion, the judge can essentially say that, based on the law here - it might be the Presidential Records Act - the jury either has rendered an illegitimate verdict or isn't allowed to render a verdict at all. And it can basically grant an acquittal here. And if that happens on a Rule 29 motion, there's no appeal.

DETROW: That was NYU law professor Melissa Murray, as well as NPR justice correspondent Carrie Johnson. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Carrie Johnson is a justice correspondent for the Washington Desk.