In an open display of frustration, federal prosecutors on Tuesday night told the judge overseeing former President Donald Trump’s classified documents case that a “fundamentally flawed” order she had issued was causing delays and asked her to quickly resolve a critical dispute about one of Trump’s defenses — leaving them time to appeal if needed.

The unusual and risky move by the prosecutors, contained in a 24-page filing, signaled their mounting impatience with the judge, Aileen Cannon, who has allowed the case to become bogged down in a logjam of unresolved issues and curious procedural requests. It was the most directly prosecutors have confronted Cannon’s legal reasoning and unhurried pace, which have called into question whether a trial will take place before the election in November even though both sides say they could be ready for one by summer.

Trump’s claim

In their filing, prosecutors in the office of special counsel Jack Smith all but begged Cannon to move the case along and make a binding decision about one of Trump’s most brazen claims: that he cannot be prosecuted for having taken home a trove of national security documents after leaving office because he transformed them into his own personal property under a law known as the Presidential Records Act.

The prosecutors derided that assertion as one “not based on any facts,” adding that it was a “justification that was concocted more than a year after” Trump left the White House.

“It would be pure fiction,” the prosecutors wrote, “to suggest that highly classified documents created by members of the intelligence community and military and presented to the president of the United States during his term in office were ‘purely private.’”

Skepticism, then reversal

At a hearing last month in U.S. District Court in Fort Pierce, Fla., Cannon herself expressed skepticism about Trump’s assertion, saying it was most likely not enough to dismiss the case before it went to trial.

But then within days, she made a surprising move, ordering the former president’s lawyers and Smith’s prosecutors to send her proposed jury instructions suggesting she was open to embracing the very same defense.

Her order sought language from both sides meant to help jurors understand how the Presidential Records Act might affect the accusation that Trump had taken “unauthorized possession” of the documents he removed from the White House. For Trump to be found guilty under the Espionage Act, the central statute in his indictment, prosecutors will have to prove that the former president was not authorized to hold on to more than 30 highly sensitive documents after he left office.

Cannon’s order for jury instructions was odd on its face because such issues are usually hashed out on the eve of trial, and she has not set a trial date yet.

Smith’s prosecutors told Cannon in their filing Tuesday that the Presidential Records Act had nothing to do with the case and that the entire notion of submitting jury instructions based on it rested on a “fundamentally flawed legal premise.”

Instead, they asked her to decide the validity of the Presidential Records Act defense in a different way: by rejecting Trump’s motion to dismiss the case based on the same argument. That motion has been sitting on her desk for almost six weeks.