Jack Smith Basically Has One Option to Save the Classified Documents Case

Special counsel Jack Smith is in a bind. While his Jan. 6–related indictment of Donald Trump is stalled until the Supreme Court weighs in, Florida District Court Judge Aileen Cannon gutted Smith’s remaining opportunity to take Trump to trial before the November election—in this case, over allegedly hoarding classified documents. On the face of it, Smith’s hands are tied, but there is one rare legal maneuver he could try to force Cannon’s hand.

It’s called a writ of mandamus, and it’s a centuries-old rule that allows a litigant to bypass their assigned district court judge and go directly to a court of appeals to ask for a court order mandating a judge to correct any abuse of discretion and force them to act according to their judicial duties. It’s essentially a legal slap on the wrist, but it’s rarely used because district court judges are typically given a lot of leeway to run their dockets and appellate courts are loath to get involved.

This is, however, hardly a typical situation, with a former U.S. president facing criminal charges—and Cannon isn’t exactly an ordinary judge, either, having been appointed to her current seat by the defendant. This, coupled with Cannon’s handling of the classified documents case thus far, has led Glenn Danas, an appeals expert and partner at Clarkson Law Firm, to think a writ of mandamus could be in Smith’s reach.

“It seems there’s an appearance of home cooking, because [Trump] appointed Judge Cannon and she is very young and kind of inexperienced,” Danas told Slate. “It seems like she’s going out of her way to afford the defendants an extraordinary amount of time and her own judicial resources to get every single thing that they want done in a way that seems unusual.”

Cannon is currently in her early 40s and was appointed to the federal bench in 2020, when she was just 39 years old. Before that, she was working at a law firm in Florida and had experience as a federal prosecutor. While Cannon was a law student at the University of Michigan, she joined the conservative Federalist Society.

Since Cannon was randomly assigned to Smith’s classified documents case, she’s been accused of slow-walking it, taking an inordinate amount of time to issue decisions on pretrial motions and building a lot of slack into the pretrial deadlines. That’s been a gift to Trump’s defense team, which wants to delay, delay, and delay some more in order to put off having any criminal trial before the November election—presumably because if Trump wins, he could ask his Department of Justice to drop Smith’s indictments against him.

For instance, Trump’s attorneys have argued he was authorized to take whatever documents—including classified ones—he chose to when leaving the White House because, they say, the Presidential Records Act allows for it. However, Smith argued that Trump doesn’t face any charges under the PRA—rather, he’s charged under the Espionage Act and for obstruction of justice—making any PRA–related defense irrelevant.

Cannon, instead of outright deciding on whether or not the PRA is applicable to the classified documents case, asked both sides to put the question to a jury through hypothetical questionnaires. Smith was not happy about this, cautioning Cannon that her lack of decisionmaking would threaten the prosecution’s right to a fair trial and an opportunity to appeal.

And after initially setting a May 20 trial, Cannon indicated for months that the date was unlikely to stick, and asked Smith and the defense to suggest new trial dates. Ultimately, Cannon didn’t heed those recommendations and moved to vacate the trial date from her court schedule altogether, citing “myriad” unresolved pretrial motions.

Cannon’s decisions as she’s overseen this trial don’t add up for Adam Pollock, former assistant attorney general of New York. He told Slate that Cannon’s reasoning reads as “kind of saying that she didn’t do the dishes and therefore the dishes are dirty.”

Kevin McMunigal, a former federal prosecutor and law professor at Case Western Reserve University, agrees. He told Slate that Cannon adopted “a really plodding pace” and questioned if it was due to her inexperience.

Considering all of Cannon’s actions thus far could give Smith grounds for a writ of mandamus. Plus, the U.S. Court of Appeals for the 11th Circuit already rebuked Cannon once before Trump was even indicted, chiding her for trying to appoint a special master to oversee the classified documents seized at Mar-a-Lago—which Trump’s attorneys had requested—-instead of allowing Smith access to the documents.

But in order for Smith’s writ to have any chance of consideration by the appellate court, he must prove there is no other adequate legal remedy available. Realistically, Danas and McMunigal don’t think there is one, since once a case is assigned to a judge, technically almost no decision they make can be appealed until the final jury verdict is reached. (A litigant can file an interlocutory appeal if they dispute a judge’s ruling before trial, but it would go to Cannon first, and only if she rejects it can the appeal proceed to the appellate court. The same process applies if Smith were to ask for a new judge. More often than not, appellate courts don’t like to get involved in matters like these.)

“You have to make a case that if the 11th Circuit Court of Appeals doesn’t jump in, you’re going to suffer some sort of harm that can’t be fixed later,” said Danas. “It might be something like an invasion of privilege or maybe disqualification of counsel.” It boils down to showing the appellate court that Cannon has abused her discretion in a way that’s permanently going to damage Smith’s case. And one way the special counsel could achieve this is by simply admitting he wants to take Trump to trial before the November election.

The special counsel has never explicitly said in public statements or court filings that he wants a speedy trial for Trump before the presidential election, likely in an effort to evade any accusations of bias or ill motive. (Instead, Smith has said there is a “national interest” in seeing Trump’s charges “resolved promptly.”) However, given the gravity of his classified documents case and Cannon’s recent decision to eliminate a trial date, Danas believes Smith could seriously consider showing his cards. “Perhaps it’s better just to be forthright about it and say, ‘I’m a special prosecutor and I don’t necessarily have a political dog in the fight, but I think it’s important for the country’s functioning to get these things done in an average way; if not on a fast track, then at least on a normal track.’ ”

Through all rungs of the country’s judicial system, maintaining a sense of fairness is a major concern, and if Smith argues Cannon is indulging in an extraordinary amount of delay in order to push this trial past the November election, which helps Trump, it could convince the appellate court to consider his writ.

“If I were working on this, I would file a writ of mandamus ASAP,” said Danas.