The Court has issued an order (ECF No. 407) directing the parties to file preliminary proposed jury instructions and verdict forms for Counts 1-32 of the Superseding Indictment, with a specific requirement that the parties “engage with [two] competing scenarios and offer alternative draft text that assumes each scenario to be a correct formulation of the law to be issued to the jury.” Both scenarios rest on an unstated and fundamentally flawed legal premise—namely, that the Presidential Records Act (“PRA”), and in particular its distinction between “personal” and“ Presidential” records, see 44 U.S.C. § 2201 (2), (3), determines whether a former President is“[]authorized,” under the Espionage Act, 18 U.S.C. § 793(e), to possess highly classified documents and store them in an unsecure facility, despite contrary rules in Executive Order (“EO”)13526, which governs the possession and storage of classified information.
That legal premise is wrong, and a jury instruction for Section 793 that reflects that premise would distort the trial.