The 3 likely outcomes after special counsel rebuked judge in Trump case

And now over to Trump

Legal World,

where special counsel

Jack Smith is delivering

his sharpest rebuke yet

against Judge Eileen Cannon

in the classified docs case.

In a filing just late last night.

Smith saying Judge Cannon

had ordered briefings

based on, quote,

fundamentally flawed

understandings of the case that has he

they call it no basis in law or in fact,

that in plain English,

where does that mean?

Special Counsel

Smith is telling Judge Eileen Cannon

that she has no idea

what she is talking about.

So what's this all about?

Well, Judge Cannon

requested jury instructions

from both sides.

And no, you didn't miss anything.

The trial has not started.

No, they haven't even picked the jury.

I mean, the trial date itself

is written in pencil. Not ink.

But Jack Smith wants the judge

to reject Trump's claim

that he cannot be prosecuted

because he transformed somehow

classified documents

into private property under

what's called

the Presidential Records Act.

Now, last month,

the judge seemed to signal

that she thought that defense was absurd.

But then here's a confusing part

for Jack Smith's team.

She asked for jury instructions

that would be the opposite.

So now the big question is,

where do we go from here?

Well, national security attorney Brad

Marsh is here with me at the magic wall.

And as I understand it, Brad,

we have got three options

here, three doors.

So what is behind door number one?

What happens

if Judge Cannon does not agree

with Special Counsel Smith?

So this is sort of the nightmare scenario

for the government.

If Judge Kennedy disagrees with how Jack

Smith outlined everything in his filing

and sends this to a jury

with that jury

instruction, it's

basically an open shut case

in Donald Trump's favor.

His lawyers could sit there

like Candy Crush on their phones

the entire time

because the way the jury instruction

is currently set out,

it would not allow for the government

to win.

That's why

Jack Smith outlines

this in the beginning of his filing,

saying it is vitally important

that the court promptly decide

whether the unstated legal premise,

this idea

about the Presidential Records Act

underlying the recent order

does, in the court's view, represent

a correct formulation of law.

They're saying this is what Jackson is

saying, is you've got it all wrong.

You don't.

You certainly don't understand

how this presidential Records Act works.

And with respect to the Espionage Act.

Trump's whole legal theory is garbage.

If you send this to a jury like this,

Jeopardy will have attached.

We won't be able to appeal

a directed verdict in his favor,

and we can't even proceed to trial.

So she's got to decide as a matter of law

that this defense cannot be available.

She's trying to punt to the jurors

and say,

hey, what do you guys think about this?

She's supposed to decide. All right.

What about door number two?

Because now the question is,

if the judge does

change the jury instructions,

what does that enable Jack Smith to do?

So this is sort of the reverse.

This is Donald Trump's nightmare.

This is what the government wants to see.

This is the way the Espionage Act cases

always proceed is it's simply an issue of

was there unauthorized possession?

Did you have the records

and did you fail to return them

when confronted about it?

That's the essence of their case.

And this is what he outlines.

Jack Smith's team

outlines in the filing

that the question

of whether the Presidential Records Act

has any impact on the element

of unauthorized possession

under Section 793, which is the Espionage

Act provision, does not turn on

any evidentiary issues.

This is basically the DOJ saying

to Judge Cannon,

this is a strict question of law.

It's not a question for the jury.

You're the judge.

You have to decide this.

Now, in the pretrial motions.

Do you agree with Donald Trump?

If you do go ahead,

rule in his favor,

will appeal to the circuit.

But if you don't, you've got

to reject his motion

to throw out this jury instruction.

And we proceed to trial with standard

jury instructions

in an Espionage Act case.

So under don't over two or behind it,

the case could still move forward

compared to

if they choose the jury section

that Trump would want.

This case could be D.O.A.

If this if it's still number one,

you may well not have a case.

The thing is over.

How about door number three?

I hate to even click it.

Let's see what's going on here.

Doing it three.

The question is,

if Shannon sticks to her initial points,

what are the special counsel's options?

This is in the appeal.

So this is where I think

we're likely headed to

is this question of

does she simply dismiss it

through the pretrial motion

as a matter of law,

or does she say, I'm going to try to keep

with these jury instructions,

but I'm to tell you now

in advance of going to trial,

that's why the government

was very clear here.

The government must have the opportunity

to consider appellate review

before jeopardy attaches.

They have to be able

to bring this to the 11th Circuit.

Now, if she's going to go this way

before they start their case,

because once they start their case,

double jeopardy attaches.

And if there's a directed verdict

in Donald Trump's favor,

they have no appellate options.

That's why they're saying

pick what you're going to do

at this point.

Just decide

what you want to do as a matter of law.

We'll go to the 11th Circuit

if we need to do so.

So reminding people

that the jurors are called fact finders.

Right?

They cite issues of fact,

but the court decides the legal issues.

And so

if she does not rule

on this motion to dismiss,

then they would not be able to go

to the 11th Circuit Court of Appeals

and then they get to go to a trial.

And that could be all.

This is where this will it interesting

if she does

if she tries to punt this now,

they're going to seek

what's called a writ of mandamus.

It's a very extraordinary option,

very rarely going.

Let me tell me what it means.

A writ of mandamus basically means

it's extraordinarily relief.

It's telling an appellate court,

the district court's messing up.

They're doing something.

It's abuse of discretion

and completely misunderstanding the law.

You need to come in and intervene. Now.

That is what they will likely have to do

if she tries

to continue to punt this to the jury,

they'll seek a writ,

what's called that writ of mandamus

to the 11th Circuit.

You've got to set it straight right now.

You know, setting her straight,

some people are talking about

that might mean considering

whether she should remain on the case.

That's going to be a pretty.

Well, I'll be waiting to see.

I don't necessarily know

if they're going to go that route,

but that would be part of the discussion,

no doubt.

Well, we'll see.

The gloves seem to be off so far.

Bradley Moss, thank you so much.