(Bloomberg) -- The Justice Department special counsel prosecuting former President Donald Trump for mishandling classified documents vented frustration with the judge overseeing the case, saying her understanding of key legal issues appears to be “fundamentally flawed.”  

In a court filing late Tuesday, Special Counsel Jack Smith criticized US District Judge Aileen Cannon in Florida and said she runs the risk of fatally damaging the case before it goes to trial. Smith called on Cannon to clarify her intentions so he can decide whether to file an appeal to contest her decisions.

Cannon ordered Smith and Trump last month to draft instructions for the jury that will hear the case, even though a date for a trial hasn’t been finalized. It’s one of four criminal cases Trump faces while he campaigns as the Republican frontrunner in this year’s presidential election. 

Cannon’s order was controversial because it directed Smith to assume that Trump may have had the right to declare the documents are personal rather than official under a 1978 law known as the Presidential Records Act.

Smith made clear he disagrees with the judge’s premise when he submitted his draft jury instructions.

‘Crucial’ Legal Questions

“The court’s scenarios are fundamentally flawed and any jury instructions that reflect those scenarios would be error,” Smith wrote. “Whatever the court decides, it must resolve these crucial threshold legal questions promptly. The failure to do so would improperly jeopardize the government’s right to a fair trial and deprive it of its right to seek appellate review.”

Smith’s case is based on charges under the 1917 Espionage Act. He said that should be the legal standard under which jury instructions are given.

The Justice Department and several legal experts disagree that the law gives a president the power to declare official government property as personal. Trump isn’t charged with violating the Presidential Records Act.

Cannon ordered Smith and Trump to each propose jury instructions. The first scenario contemplates that the jury could make a determination whether any document was personal or official. Under a second scenario, a president has the sole authority to make the determination and it can’t be challenged by a court or jury.

‘Post Hoc Justification’ 

Smith also took shots at Trump and his lawyers, saying they concocted the idea that Trump declared the documents as personal long after he left the White House.

“The court should be aware at the outset that Trump’s entire effort to rely on the PRA is not based on any facts,” Smith wrote. “It is a post hoc justification that was concocted more than a year after he left the White House, and his invocation in this court of the PRA is not grounded in any decision he actually made during his presidency.”

Cannon, who was appointed to the bench by Trump, has repeatedly drawn criticism that her rulings have favored him. Smith could ask the Atlanta-based 11th Circuit Court of Appeals to overrule her, or even try to get her removed from the case.

Trump is accused in the case of willfully retaining national defense documents, concealing records and obstructing justice by evading government efforts to retrieve the files he took.

Cannon originally set a trial for May 20 but has indicated that she will select a later date.

Trump’s lawyers said in a filing that he had the ability to label the documents as personal and take them from the White House. They reiterated their previous calls for the case to be dismissed.

“Both scenarios posited in the court’s March 18 order are consistent with President Trump’s position that this prosecution is based on official acts that President Trump took during his first term in office,” Trump’s lawyers wrote.

(Adds a Smith argument in third section.)

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