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Trump prosecutors eye appeal if judge moves forward with dual paths in documents case

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Prosecutors in former President Donald Trump’s classified documents case plan to appeal if the judge continues with a bifurcated trial path after requiring both sides to produce proposed jury instructions under two different legal scenarios.

In response to the judge’s order, both sides submitted different proposals. Trump’s defense team said the case should be tossed. Prosecutors, led by special counsel Jack Smith, asked the judge to rule on several key issues that could hurt their case before going to trial.

Trump’s team continued to claim that the prosecution was an unjust attempt to interfere with the 2024 election, a rematch between President Joe Biden and Trump. They alleged the Department of Justice and the National Archives and Records Administration worked together to cook up the charges against Trump under the Presidential Records Act.

“DOJ, NARA, the Biden Administration, the FBI, and, subsequently, the Special Counsel’s Office colluded on the basis of non-existent authority under the PRA to demand records and responses to which they were not entitled, to execute search warrants based on legally meritless and unprecedented PRA arguments, to illegally pierce President Trump’s attorney-client privileges based on similar flawed claims, and to initiate this wrongful and lawless prosecution,” Trump’s attorneys wrote in their reply.

Prosecutors said they need clarification on Judge Aileen Cannon’s position so they can appeal if needed. They asked the judge to decide before any trial if the Presidential Records Act “has an impact on the element of unauthorized possession” of classified documents. Failure to do so could make it impossible to prosecute Trump because of the double jeopardy clause in the Fifth Amendment, which prohibits anyone from being prosecuted twice for the same crime.

“If the Court were to defer a decision on that fundamental legal question it would inject substantial delay into the trial and, worse, prevent the Government from seeking review before jeopardy attaches,” prosecutors wrote.

Prosecutors also said that Trump’s legal arguments had no basis in law.

“He has attempted to fashion out of whole cloth a legal presumption that would operate untethered to any facts – without regard to his actual decisions, his actual intent, the unambiguous definition of what constitutes personal records under the PRA, or the plainly non-personal content of the highly classified documents that he retained,” they wrote.

Trump has pleaded not guilty to 40 felony counts that allege he kept sensitive military documents, shared them with people who didn’t have security clearance and tried to get around the government’s attempts to get them back.