Washington——

The U.S. prosecutor prosecuting the case alleging that Donald Trump withheld classified documents after leaving office pushed back against a federal judge after she said she might accept the former president’s contention that the records were his personal property.

Special U.S. Attorney Jack Smith said in a court filing late Tuesday that his office will appeal any decision by U.S. District Judge Erin Cannon that would instruct jurors in the case to consider what he said Trump’s “fundamentally flawed legal premise.”

Trump, the Republican nominee to challenge Democratic President Joe Biden in the Nov. 5 election, pleaded not guilty last year to a 40-count indictment accusing him of illegally preserving classified documents and obstructing the federal government’s search for documents after leaving office in 2021. Return these files.

Cannon, a Trump appointee to the bench, said she accepted Trump’s assertion that he treated the documents as personal under a 1978 law called the Presidential Records Act, which allows for Former presidents retain records unrelated to their official duties.

Prosecutors said the documents related to U.S. military and intelligence matters, including details about the U.S. nuclear program, and could not be considered personal documents.

On March 18, the judge directed the prosecution and defense to present jury instructions based on two legal scenarios assuming Trump’s arguments would play out at trial.

In one case, prosecutors said, neither the jury nor the judge could challenge Trump’s argument that the records were personal, effectively instructing the jury to acquit Trump. They urged Cannon to decide quickly whether to tell jurors that Trump’s claims were relevant to the charges against him, arguing prosecutors must have time “to consider appellate review.”

Smith’s filing said Cannon’s order was based on flawed legal premises and would “distort the trial.”

It is one of four criminal cases Trump faces. He has pleaded not guilty in all of the cases and has sought to attribute them to political motives.

Trump’s lawyers reiterated their argument in a filing Tuesday night that what they said was Trump’s decision to treat the records as personal means the charges should be dismissed before trial.

The passage of the Presidential Records Act enables the U.S. government to possess the official records of the presidential administration. It allows former presidents to retain certain personal records unrelated to their official duties.

Trump argued that his decision to take the materials to his Mar-a-Lago estate in Florida showed he considered the records his personal property. Prosecutors argued that records laws do not authorize the former president to withhold classified information.

The charges Trump faces include violating the Espionage Act, which criminalizes the unauthorized possession of defense information, and conspiracy to obstruct justice.

The case’s original May 20 trial date is widely expected to be postponed.