Biden Justice Department special prosecutor Jack Smith is on the verge of waging war with Aileen Cannon, the Trump-appointed judge overseeing the former president's classified documents case in Florida.

Smith on Tuesday filed a desperate appeal requesting that Judge Cannon rule expeditiously on jury instructions related to the President Records Act (PRA), which former President Donald Trump has claimed allowed him to declassify all documents found in his possession at Mar-a-Lago, even some containing national security secrets.

Smith alleges that Judge Cannon's request for competing jury instructions relies on a “fundamentally flawed legal premise.”

An immediate review, Smith writes, would allow him to seek an appeal if Judge Cannon agrees with the former president that the PRA does not distinguish between governmental records and personal property, according to Salon. If the case goes to trial under such instructions, he adds it 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,” Smith said in the filing. “Indeed, based on the current record, the PRA should not play any role at trial at all.”

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“Furthermore, Trump's entire effort to rely on the PRA is not based on any facts,” Smith continues. “Instead he has attempted to fashion out of whole cloth a legal presumption that would operate untethered to any facts — without regard to his actual decisions, his actual intent, the unambiguous definition of what continues personal records under the PRA, or the plainly non-personal content of the highly classified documents he retained.”

“There is no basis in law or fact for that legal presumption, and the Court should reject Trump's effort to invent one as a vehicle to inject the PRA into this case,” he concludes.

Legal experts framed Smith's argument as a make-or-break moment for the special counsel.

“Jack Smith just threw down the gauntlet,” wrote former federal prosecutor Renato Mariotti. By asking Judge Cannon to rule now, he wrote on X, Smith cautions her to “avoid a miscarriage of justice at trial.”

“To make this crystal clear, if trial begins and Judge Cannon makes a ruling that is legally erroneous *in the middle of the trial*, resulting in a not guilty verdict, prosecutors *cannot* appeal the verdict,” he explained. “That's why Jack Smith wants a ruling before trial, so he can appeal.”

National security attorney Bradley Moss said the Smith filing “puts Cannon on notice that he has had enough.”

“The PRA angle is a question of law, not fact, and if she believes Trump’s PRA defense she should grant his motion and let Smith take this to the 11th circuit already,” he wrote.

Last month, Smith suffered a humiliating setback when Judge Cannon ordered him to effectively turn over all classified materials to the defense team or risk dismissal of the case. Essentially, either a jury of private citizens gets the chance to review the documents, or Smith runs the risk that the jury would acquit Trump based on a lack of evidence that anything in his possession was actually classified.

“Although there is no formal means in the PRA by which a president is to make that categorization, an outgoing president’s decision to exclude what he/she considers to be personal records from presidential records transmitted to the National Archives and Records Administration constitutes a president’s categorization of those records as personal under the PRA,” Judge Cannon wrote in March.

Should he appeal to the Eleventh Circuit Court of Appeals, Smith would still find himself beset by yet another delay in a trial that observers already believe will stretch beyond the 2024 election, a situation that prosecutors have long sought to avoid. The Justice Department is prosecuting President Trump in a Washington, D.C. case related to the January 6th, 2021 riots at the Capitol while local prosecutors in New York and Georgia have brought their own criminal cases against the former president. Smith’s calendar must now accommodate not only all other cases, but also the timeline for a potential appeal of Judge Cannon’s latest decision. He must also account for several setbacks related to discovery timelines and opportunities for Trump’s legal team to cross-examine all 84 witnesses prosecutors say they intend to call.