The charges against Trump “make no reference to the Presidential Records Act, nor do they rely on that statute for purposes of stating an offense,” U.S. District Judge Aileen Cannon wrote.
“For these reasons, accepting the allegations of the Superseding Indictment as true, the Presidential Records Act does not provide a pre-trial basis to dismiss,” the judge wrote, raising the possibility the defense argument could be used later.
Cannon had asked both sides to address the argument that the national security documents could be considered personal in proposed jury instructions, an argument special counsel Jack Smith’s office argued was “fundamentally flawed.” The judge said in her Thursday ruling that Smith’s demand she decide the issue now is “unprecedented and unjust.”
Cannon disputed that her order soliciting preliminary draft instructions was anything but “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.”
The Presidential Records Act requires the return of presidential records at the end of a president’s term, but says they can keep their personal records, which is described as documents containing “highly personal information, such as diaries, journals, and medical records.”
In a filing Tuesday, Smith’s office said Cannon’s proposed instruction on Trump’s broader interpretation of the law would essentially result in the jury being told to accept Trump’s defense, which it maintains is a fiction.
“Trump’s entire effort to rely on the PRA is not based on any facts,” prosecutors said. “It is a post hoc justification that was concocted more than a year after he left the White House, and his invocation in this Court of the PRA is not grounded in any decision he actually made during his presidency to designate as personal any of the records charged.”
Cannon’s request last month for the proposed jury instructions incorporating Trump’s PRA was unexpected. It came after a hearing where the judge had seemed highly skeptical of the defense, and it also came as there’s no firm trial date for the case to begin.
The trial is scheduled to begin May 20, but the judge has repeatedly indicated that the date would be pushed back and asked both sides to submit new proposed dates. Both sides did so in late February, but Cannon has not yet ruled.
Trump faces multiple charges in the classified documents case, including willful retention of national defense information, false statements and representations, conspiracy to obstruct justice, withholding a document or record and corruptly concealing a document.
The former president has pleaded not guilty to all counts.
This article was originally published on NBCNews.com