Trump Florida case spurs unusual tension for Smith and judge
Special counsel Jack Smith‘s frustrations with the Florida federal judge in the classified documents case against former President Donald Trump hit a new level this week after both appeared to chide each other in court filings.
Tensions came to a head this week in a Tuesday night court filing in which Smith’s team of prosecutors rebuked U.S. District Judge Aileen Cannon after she showed a willingness to entertain a theory that Trump has posited in a bid to dismiss his case. Smith’s team called that theory “pure fiction” and signaled he might seek redress from a higher court in response to any adverse decision, in addition to asking her to move quickly in her decision process to prevent her from defanging the prosecution just before an eventual trial.
Cannon made a striking rebuke in response to Smith’s “demand” on Thursday, saying in an order denying Trump’s motion to dismiss the case that the prosecutor’s urgency was “unprecedented and unjust.”
Andy McCarthy, a former federal prosecutor, told the Washington Examiner that “this concerns Smith” because if Cannon rules against him after the trial has already commenced, “Trump could be acquitted and the prosecution would have no right of appeal (due to double jeopardy principles).”
While clarifying he is “not a Smith fan,” McCarthy stressed that he did not “blame him for doing this.”
“Any competent prosecutor would try to tee things up to be able to appeal if the trial judge looks like she might rule against him,” McCarthy said.
Cannon and Smith’s friction over the recent proposal for jury instructions, a final version of which will be handed to jurors at the end of a trial, appeared to give some credence to Trump’s interpretation of how classified documents could be preserved after his presidency, which is the core of the charges against him.
Cannon decided on Thursday to decline Trump’s motion to dismiss the case on the argument that the Presidential Records Act granted “unreviewable discretion on President Trump to designate the records at issue as personal.” While she said Trump couldn’t dismiss the case on those grounds, she left open the possibility for his lawyers to raise that theory if a trial ever takes place, marking another major point of disagreement for Smith.
The issue at hand has also given rise to a wide-ranging public debate about Cannon’s intentions and whether she is fit for the role of adjudicating the case, as some have pointed out that this is the biggest case of her career since she was appointed to the bench by Trump in late 2020.
Michael Bromwich, a lawyer who represented Brett Kavanaugh accuser Christine Blasey Ford, said that Cannon was not “experienced, smart, [or] impartial” enough to handle the case before her. “If she has any self-awareness, she should recuse herself,” according to a post on X.
But other experts such as A.J. Delgado, a former senior adviser to the Trump 2016 campaign who worked in the transition team after the 2016 election and has since become a Trump critic, argued Smith “sadly” does not have the strongest argument to recuse the judge at this point.
“I know a lot of Legal Twitter thinks Smith has an avenue to recuse Cannon but, sadly, I don’t think he does,” Delgado, who described herself now as “anti-Trump,” posted on Thursday. “Incompetent/terrible rulings (unless I’m missing something) aren’t a basis for removal, which is generally only given if one shows bias, conflict of interest, etc.”
Trump has positioned himself as Cannon’s biggest defender, calling her a “highly respected judge” in a post on his social media platform, Truth Social.
The criticism against Cannon is juxtaposed by a broader legal expert community that has, in some cases, appeared to praise the decisions by Trump’s judges in his other criminal cases, such as Smith’s four-count indictment in Washington, D.C., on the former president’s alleged efforts to subvert the 2020 election.
For example, CNN legal analyst Paula Reid spoke this week about her experience inside federal courtrooms in Florida and Washington, respectively. For Cannon, “keeping control of her courtroom is something she didn’t demonstrate” when navigating the arguments between Trump’s lawyers and the special counsel’s office, Reid said. Conversely, she said U.S. District Judge Tanya Chutkan, who is presiding over the separate election subversion case, has been “able to keep things moving along very quickly and keep her courtroom under control.”
Notably, the Washington case against Trump is on hold until the Supreme Court returns a ruling on whether Trump can invoke presidential immunity to dismiss the charges, a matter that will be argued at the high court on April 25, with a ruling expected sometime between May and the end of June.
The Washington Examiner spoke to two Case Western Reserve University Law School professors who offered different viewpoints about why the expert community appears to view Cannon as less competent than Chutkan.
“I recognize that many reactions to these cases are affected by one’s views about President Trump, but I also think that Judge Cannon’s approach raises more questions in terms of traditional judicial procedure than does Judge Chutkan’s,” professor Jonathan Entin told the Washington Examiner, saying the root of this critique could be “because her approach to the Trump case seems unconventional.”
Entin explained that asking parties to propose jury instructions long before a trial date has even been established “is unusual,” especially in the case where the instructions “might deal with legal issues that the court rather than the jury typically deals with.”
Two years ago, Cannon was excoriated by the U.S. Court of Appeals for the 11th Circuit when she granted Trump’s request for a special master to review the evidence seized from his Mar-a-Lago estate and temporarily blocked parts of the Justice Department’s investigation before the appeals reversed her decision.
Jonathan Adler, another law professor from Case Western, argued that there is “no question” there are some legal commentators who “view every question through a Trump-tinted lens, and support decisions that support their view of Trump’s conduct.”
“That said, I don’t think that explains the commentary about Judge Cannon. As we saw when she was reversed by the 11th Circuit, she has made some decisions in this case that were quite problematic,” Adler said, noting Cannon is hardly the first district judge to have “made problematic decisions.”
But if judges are not infallible, the same can be true for prosecutors, especially in the case of Smith.
McCarthy noted that Smith is a “notoriously aggressive” former war crimes prosecutor who was ultimately rebuked by the Supreme Court after he secured a conviction of then-Virginia Gov. Bob McDonnell of honest services fraud and illegally accepting gifts. After the high court stepped in, the justices cited the use of an overbroad definition of an “official act.”
However, McCarthy said he believes that Smith has been “aggressive with Judge Chutkan, just as he has with Judge Cannon.”
“This is less obvious in the commentary because the legal commentariat leans left and likes Judge Chutkan — an Obama appointee, who has been a tough sentencer in Capitol riot cases (and made anti-Trump comments in that connection), while the commentariat is predisposed against Judge Cannon — a Trump appointee whom the Eleventh Circuit appeals court reversed when she made a couple of erroneous rulings in Trump’s favor after the Mar-a-Lago search,” McCarthy said.
As for whether Smith will actually make the point of requesting Cannon’s removal from the documents case, legal experts say doing so could ultimately be a death knell for the special counsel’s efforts to see this case go to trial before the November election because a new judge assignment would essentially result in restarting the case.
Bradley Moss, a national security attorney who is by no means a fan of Trump, believes Smith could seek to exhaust all possible avenues for relief before ever making an appeal to the 11th Circuit.
“I think Smith has to try to exclude the PRA defense first through a motion in limine. If Cannon denies that route, *then* you seek mandamus relief,” Moss wrote on X, referencing Smith’s filing in which he threatened a “writ of mandamus” in response to Cannon’s jury instruction proposal.
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Simply put, a motion in limine is a request to not offer or include certain evidence within a trial. If that request is denied, a writ is then filed, which is an order for a governmental entity to fulfill its lawful obligations.
In all, Trump faces 40 felony charges in the classified documents case. The most serious charge carries a penalty of up to 20 years in prison. Two co-defendants are also facing charges of scheming to conceal surveillance footage from federal investigators and later lying about the alleged events. All three have pleaded not guilty to the charges.
