re: The tone Jack Smith is taking with Cannon is no longer persuasion but outright threats

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That legal premise is wrong, and a jury instruction for Section 793 that reflects that premise would distort the trial. The PRA’s distinction between personal and presidential records has no bearing on whether a former President’s possession of documents containing national defense information is authorized under the Espionage Act, and the PRA should play no role in the jury instructions on the elements of Section 793. See ECF No. 373 at 5-12. Indeed, based on the current record, the PRA should not play any role at trial at all.
Moreover, it is vitally important that the Court promptly decide whether the unstated legal premise underlying the recent order does, in the Court’s view, represent “a correct formulation of the law.” ECF No. 407 at 2. If the Court wrongly concludes that it does, and that it intends to include the PRA in the jury instructions regarding what is authorized under Section 793, it must inform the parties of that decision well in advance of trial. The Government must have the opportunity to consider appellate review well before jeopardy attaches. See, e.g., United States v. Wexler, 31 F.3d 117, 129 (3d Cir. 1994) (“[T]he adoption of a clearly erroneous jury instruction that entails a high probability of failure of a prosecution—a failure the government could not then seek to remedy by appeal or otherwise—constitutes the kind of extraordinary situation in which we are empowered to issue the writ of mandamus.”); In re United States, 397 F.3d 274, 283 (5th Cir. 2005) (courts “have permitted the Government to obtain writs of mandamus when a proposed criminal jury instruction clearly violated the law, risked prejudicing the Government at trial with jeopardy attached, and provided the Government no other avenue of appeal”); United States v. Pabon-Cruz, 391 F.3d 86, 91-92 (2d Cir. 2004) (similar).

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