Ex-U.S. attorney: Trump motion may lay groundwork for Jack Smith to demand “Judge Cannon’s recusal”

Donald Trump; Jack Smith Photo illustration by Salon/Getty Images
Donald Trump; Jack Smith Photo illustration by Salon/Getty Images
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Former President Donald Trump’s lawyers asked U.S. District Judge Aileen Cannon to grant them access to a Justice Department filing on classified details in the case that special counsel Jack Smith wants removed from discovery proceedings. "Given the security clearances that have been extended to President Trump and counsel, and the volume of classified discovery produced to date, there is no case-specific reason for ex parte proceedings," Trump’s lawyers wrote in the filing.

"The Court should be skeptical of boilerplate invocations of vague national security concerns and citations to factually distinguishable cases by the Special Counsel’s Office, particularly in light of the post-CIPA development of bodies of law under the Freedom of Information Act ('FOIA'), in habeas proceedings, and in motions to suppress Foreign Intelligence Surveillance Act ('FISA') evidence, where parties are granted greater access to filings that summarize sensitive and classified information,” the lawyers argued.

Former Mueller prosecutor Brandon Van Grack noted that motions on classified documents to remove from discovery “are almost always filed ex parte (not provided to defense counsel.” He predicted that if Cannon grants Trump lawyers access, “expect the DOJ’s first appeal” in the case. “Not only would there be an appeal, but it would give rise to grounds to ask the court to direct Judge Cannon's recusal,” added former U.S. Attorney Joyce Vance. “She's likely to follow the law unless she really wants to go through that process. The real question is, how long will it take her to rule?”