Julie Kelly 🇺🇸 @julie_kelly2
Reviewing my notes from last week's classified docs hearing to try to explain Judge Cannon's jury instruction motion filed yesterday.
Cannon repeatedly asked DOJ to identify the official, individual responsible for "authorizing" retention of national defense info. She drilled down on what she said "struck me as interesting...the timing of the indictment," noting Trump's alleged "unauthorized possession" happened on Jan 21, 2021.
Jay Bratt, Jack Smith's lead prosecutor on the case, confirmed the government believes Trump's "unauthorized" possession of national defense information occurred "the moment he left office."
Really?
So the controversy rests on whether Trump as president (which is why this is different than Biden's unauthorized possession of documents bc he never had the authority to declassify or determine personal v presidential records) had the authority as president before he left office to permit his possession of the records.
This is the best Jack Smith could do in defining "unauthorized" to meet language in Espionage Act. Since no former president has ever been prosecuted for this--another point repeatedly raised by Cannon--DOJ has no historical precedent to argue an outgoing president cannot confer "authority" on himself for possessing NDI papers.
So this is partially when Presidential Records Act terms come into play--the basis of her questioning last week and jury instruction order last night:
