How Jack Smith just called out Judge Aileen Cannon in the Trump classified records case
Op-Ed,Election 2024
Harry Litman April 3, 2024
Jack Smith has had enough.
Late Monday, the special counsel responded to U.S. District Judge Aileen Cannons bizarre recent order in the classified records case against Donald Trump, which asked the parties to propose jury instructions based on flagrantly wrong legal premises. Smiths answer, in effect, was Im not playing.
Rather than take on Cannons cockamamie assignment, Smith laid out accurate jury instructions based on the actual charges and law.
Cannon had ordered the parties to engage with the Trump teams recurrent misinterpretation of the Presidential Records Act, which has no legal bearing on the case. Her order also depended on an account of the facts namely, that Trump may have magically converted all the classified government records at issue into his personal property as he left the White House that has always been beyond incredible.
In effect, Cannon was ordering the Justice Department to assume that the world is flat and then map a route from Atlantis to Arcadia.
But the order wasnt just daffy; it was pernicious.
As I explained when the judge entered the order, her Alice in Wonderland antics seemed designed to avoid issuing a ruling that prosecutors could appeal while also setting the stage for her to adopt Trumps ridiculous claims after a jury has been impaneled.
That could be a fatal blow to Smiths case. Once a jury is selected, even a ridiculous order can bring a prosecution to a hard stop because the Constitutions double jeopardy clause precludes retrial. It would be the judicial equivalent of a perfect crime.
Along with much of the country, the special counsel has no doubt watched in frustration as Cannon has repeatedly indulged silly arguments from Team Trump while eating up weeks and months that prosecutors and voters dont have. She has taken a cut-and-dried case based on overwhelming evidence and made it a long shot to be tried this year, when it matters most.
Her conduct has raised the question of when and how Smith could ask the 11th Circuit Court of Appeals to remove her from the case. That would be a heavy lift, and yet Cannons earlier bungling of a search warrant in the case was so extreme that another grievous error could justify such an unusual remedy.
But Cannon has seemed to play a kind of cat-and-mouse game with the prosecution, favoring Trump with delays while avoiding definitive rulings that Smiths team could readily appeal.
The special counsels latest filing suggests the end of the game may be near. The governments 24-page answer states flatly that the judges legal premise is wrong, and a jury instruction that reflects that premise would distort the trial.” Under the usual rules of discourse between judge and litigants (and especially federal prosecutors), thats pretty cheeky.
But it was just the beginning of Smiths pushback. The special counsel proceeded to instruct the judge again contrary to normal etiquette that it is vitally important that the court make a decision about Trumps Presidential Records Act arguments. In other words, Cannons precious thought experiment was not only wrongheaded; it was a dereliction of the courts basic responsibility to rule on the parties motions.
The Justice Department is turning the tables on Cannon by telling her to just decide the matter already. Smiths team also put the need for a speedy trial in particularly clear terms: Whatever the court decides, it must resolve these crucial threshold legal questions promptly. Failure to do so would improperly jeopardize the Governments right to a fair trial.
The prosecution further called out Cannons threat to issue a consequential ruling after a jury is impaneled, writing, The Government must have the opportunity to consider appellate review well before jeopardy attaches.
The Smith team then made its most important and aggressive move by noting that when judges have issued clearly erroneous jury instructions that doom prosecutions, courts have permitted the government to obtain writs of mandamus.
Even buried in a parenthetical as it is, the word mandamus jumps off the page as a threat to seek an extraordinary intervention by the appellate court. Smith has laid down the gauntlet, telling Cannon in no uncertain terms that if she doesnt move to resolve Trumps frivolous arguments well ahead of trial, he will bring a writ of mandamus to the 11th Circuit along with a motion to recuse her from the case. Providing this road map of his intentions puts Smith on firm footing to challenge the judge if she continues to dither.
For that reason, this brief is the special counsels most important in the case since the indictment. Under the circumstances, its the strongest possible move to speed the prosecution to a trial before the election. Either Cannon will move the case along, or the department will try to remove her from it.
Harry Litman is the host of the
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