Judge Aileen Cannon, the U.S. District Court Judge handling the Mar-a-Lago case, has previously come under intense media fire for the apparent bias in handling Donald Trump’s case. But she has never been criticized as she is now.

Weeks ago, Cannon proposed two jury instructions.

Cannon’s first proposed instruction asked the jury to determine whether each single record Trump allegedly kept was personal or presidential under the Presidential Records Act. As noted below, even the president doesn’t get to make the decision regarding which records are which.

** The PRA requires that all documentary materials “be categorized as Presidential records or personal records upon their creation or receipt and be filed separately.” 44 U.S.C. 2203(b). The President does not have discretion to categorize a Presidential record as a personal record. 

Trump allegedly kept documents that referenced nuclear weapons and war plans. It is nearly impossible to see how those records could be seen as personal. It is not his decision, and yet he’s claiming that they are personal records.

Enter instruction two: Cannon’s instruction assumes that Trump – while in office as president, has complete authority to take any records he wants (Probably due to the misconstrued assertion that the president can declassify any document.)

Critics maintain that the jury instructions are not just “wrong” in tracking the law but make a conviction – or restraining any future president – nearly impossible.

Jack Smith’s team of prosecutors filed the strongest brief in response yet, stating that if Cannon were to institute such jury instructions, the prosecution should be allowed to immediately appeal the ruling.

The situation has led to an avalanche of criticism from former prosecutors. Newsweek gathered a selection of quotes from various experts, and they are scathing. Former federal prosecutor Glenn Kirschner said:

Jack Smith literally and figuratively lays down the law. The disqualification bucket runneth over, and it’s time for a motion to remove Trump-appointed Judge Aileen Cannon from presiding over a case involving a defendant to whom she owes her job.”

Jack Smith literally and figuratively lays down the law. The disqualification bucket runneth over, and it’s time for a motion to remove Trump-appointed Judge Aileen Cannon from presiding over a case involving a defendant to whom she owes her job: pic.twitter.com/dYK2aEiOqK

— Glenn Kirschner (@glennkirschner2) April 4, 2024

Jack Smith doesn’t lay down the law – though Kirschner may be referring to Smith’s brief, but the instructions are so over the top in misconstruing the law that, well – in Kirschner’s opinion, the bucket runneth over.

The CEO of the Center for Employment Justice, Pam Keith, who is unquestionably a Biden supporter, made a bit of a strange claim:

Aileen Cannon is angling for a [Supreme Court] nomination. She has a PERSONAL stake in helping Trump avoid conviction and is doing her level best to curry his favor. She has ZERO future if Biden wins.

Aileen Cannon is angling for a SCOTUS nomination.

She has a PERSONAL stake in helping Trump avoid conviction, and is doing her level best to curry his favor.

She has ZERO future if Biden wins.

Garland’s sabotage of the case by filing it in FL was intentional & obvious.

— Pam Keith, Esq. (@PamKeithFL) April 4, 2024

Well, it is doubtful that Cannon would ever be nominated nor consented to a Supreme Court position, but Cannon surely has a future. Federal Judges can only be removed through impeachment, and even if Biden wins, Cannon has a seat on the federal bench for life – some might think of that as the pinnacle of a career. We should be cautious in taking Keith’s claim of bias regarding future aspirations.

Perhaps the strongest statement comes from Trump’s former attorney, Ty Cobb, who hits it out of the park:

“Her incompetence is so gross that I think it clearly creates the perception of impartiality– of partiality and her attempt to put her thumb on the scale. So, I think that should disqualify her.”

“[Many] have tried to be polite about Judge Cannon’s missteps here and suggesting that they relate somehow to her experience or incompetence. I think the evidence of her bias is pretty palpable at this stage of the game.”

As for the improper instructions, CNN has an op-ed piece by a respected attorney, Norm Eisen, and others that set out why Judge Cannon looks to be so far afield:

Cannon’s first scenario would allow the jury to make a factual determination about whether a former president deemed a record to be personal or official under the PRA. That is nonsensical – presidents are not allowed to designate official records as personal ones, so there is no factual issue for a jury to resolve.

The above is just one example. If one wants to wade into the legal weeds and read more as to why many believe that Cannon’s proposed instructions are shockingly wrong, the rest of the CNN.com article can be found here.

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Jason Miciak can be reached at [email protected] and on “X” @JasonMiciak