How Jack Smith Just Summoned Judge Aileen Cannon in Trump’s Classified Dossier Case

(Jacquelyn Martin/Associated Press)

How Jack Smith Just Summoned Judge Aileen Cannon in Trump’s Classified Dossier Case

Opinion piece, Elections 2024

Harry Litman

April 3, 2024

Jack Smith has had enough.

Late Monday, the special counsel responded to U.S. District Judge Aileen Cannon’s bizarre recent order in the Secret Files case against Donald Trump, which asked the parties to propose jury instructions based on blatantly flawed legal premises. Smith’s response was basically: I’m not playing.

Instead of taking Cannon’s cockamamie assignment, Smith provided precise jury instructions based on the actual charge and the law.

Cannon had instructed the parties to address the Trump team’s recurring misinterpretation of the Presidential Records Act, which has no legal bearing on the case. Her order also hinges on an account of the facts, namely that Trump magically turned all the classified government documents in question into his personal property when he left the White House, which has always been incredible.

In fact, Cannon instructed the Justice Department to assume the world is flat and then map a route from Atlantis to Arcadia.

But the order wasn’t all daffy; it was pernicious.

As I explained when the judge issued the order, her Alice in Wonderland antics seemed designed to prevent a ruling from being made that prosecutors could appeal, while at the same time clearing the way for her to challenge the ridiculous claims of Trump to take over after a jury was installed.

That could be a fatal blow to Smith’s case. Once a jury is selected, even a ridiculous order can permanently halt a prosecution, because the Constitution’s double jeopardy clause precludes a new trial. It would be the legal 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 in foolish arguments from Team Trump, while consuming weeks and months that prosecutors and voters do not have. She has taken a ready-made case, based on overwhelming evidence, and has given it a strong chance of being tried this year, when it matters most.

Her behavior has raised questions about when and how Smith might ask the 11th Circuit Court of Appeals to remove her from the case. That would be a heavy burden, and yet Cannon’s previous bungle with a search warrant in the case was so extreme that another serious mistake could justify such an unusual resolution.

But Cannon appears to be playing a kind of cat-and-mouse game with the prosecutor, favoring Trump with delays while avoiding final rulings that Smith’s team could easily appeal.

The special counsel’s latest filing suggests the end of the game may be nigh. The government’s 24-page response states bluntly that the judge’s legal premise is wrong, and a jury instruction that reflects that premise would distort the trial. .

But it was just the beginning of Smith’s setbacks. The special counsel again instructed the judge, contrary to normal etiquette, that it is critical that the court decide Trump’s arguments in the Presidential Records Act. In other words, Cannon’s costly thought experiment was not only wrong; it was a violation of the court’s fundamental responsibility to decide the parties’ claims.

The Justice Department turns the tables on Cannon by telling her to decide the case already. Smith’s team has also put the need for a speedy trial in particularly clear terms: whatever the court decides, it must resolve these crucial threshold legal questions quickly. Failure to do so would improperly compromise the government’s right to due process.

The prosecutor further called out Cannon’s threat to issue a follow-up ruling after a jury is empaneled, writing: The government must have an opportunity to consider appellate review well before danger threatens.

The Smith team then made its most significant and aggressive move by noting that when judges have issued clearly erroneous jury instructions condemning prosecutions, courts have allowed the government to obtain writs of mandamus.

Even hidden in brackets, the word mandamus jumps off the page as a threat to demand extraordinary intervention from the court of appeals. Smith has thrown down the gauntlet, telling Cannon in no uncertain terms that if she does not act to resolve Trump’s frivolous arguments well before trial, he will submit a writ of mandamus to the 11th Circuit, along with a motion to dismiss her from court. case. By providing this roadmap of his intentions, Smith has a solid foundation to challenge the judge if she continues to hesitate.

For that reason, this letter is the most important from the Special Counsel in this case since the indictment. Under the circumstances, this is the strongest possible step to expedite the prosecution to a pre-election trial. Either Cannon will move the case or the department will try to get her out.

Harry Litman is the host of the

Talking Feds Podcast

and the

Speaking of San Diego

speaker series.

@harrylitman

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