'The nuclear button': Special counsel could seek removal of judge in Trump classified docs case, attorneys warn

WASHINGTON — Special counsel Jack Smith could soon seek to have the judge presiding over former President Donald Trump’s classified documents case recused, prosecutors and defense attorneys warn, describing Smith as being pressed to the “breaking point” over arguments his office said could taint a trial irrevocably.

Smith faulted Judge Aileen Cannon in a scathing rebuke for seeming to take at face value Trump’s “fundamentally flawed” claim around a president’s official and personal records when she asked both sides to put forth competing versions of instructions for jurors in the case and said her request would “distort” the trial. Smith indicated in that filing that if Cannon ruled against federal prosecutors, this could be a trigger for an appeal to the 11th Circuit that could remove her from the case.

“He is close to pushing the nuclear button,” said Palm Beach County State Attorney David Aronberg. “It is a high burden to reach, and it is rarely done, but her proposed jury instructions may have pushed him to the breaking point.”

That proposal for jury instructions, a final version of which would be delivered to jurors at the end of a trial, seemed to consider Trump’s interpretation of how classified documents could be preserved after leaving office, which is at the center of the charge against him.

Even Trump has weighed in, defending the judge in posts to his Truth Social platform while saying Smith should be “sanctioned or censured” for criticizing Cannon's recent request for jury instruction proposals, and accused the “Deranged ‘Special’ Counsel” of wielding a two-tiered system of justice while “obviously trying to ‘play the ref.’”

“He shouldn’t even be allowed to participate in this sham case, where I, unlike Crooked Joe Biden, Hillary Clinton, and all the rest, come under the Presidential Records Act,” Trump wrote.

But instead of backing away, Aronberg said that Cannon, including in a court filing on Thursday explaining her proposed jury scenarios, has stoked these tensions, so Smith may see no option but to appeal.

“Cannon seems to be daring Smith,” he said.

Cannon responded Thursday that when she directed Trump and the special counsel to submit jury instructions framed with two competing scenarios around the Presidential Records Act as it relates to the charges against Trump, this was nothing more than “a genuine attempt … to better understand the parties’ competing positions and the questions to be submitted to the jury in this complex case of first impression.”

The judge also called “unjust” Smith’s request for a prompt ruling on whether the legal premise behind her request is a “correct formulation of the law.” She then appeared to thumb her nose at the special counsel.

“As always, any party remains free to avail itself of whatever appellate options it sees fit to invoke, as permitted by law,” Cannon added.

Trump’s lawyers have maintained that the Presidential Records Act gives Trump the authority to decide whether a record is personal or presidential, including documents with classification markings seized by federal investigators at his Mar-a-Lago estate, and that his determination cannot be overruled by the courts. Smith’s office has characterized Trump’s defense using the Presidential Records Act as “not based on any facts,” and questioned his claim that the documents were made personal while he was still president, saying there is no evidence.

Smith’s office has aired frustrations with Cannon, including over her pace, as Trump fights for more time to press his case in Florida, and where Cannon’s docket includes a slew of legal decisions still to be decided.

In a separate case involving Trump, Smith has argued that there is a “national interest in seeing” that charges against the former president are “resolved promptly.” (Trump says the opposite, that taking a case to trial before the election amounts to interfering with the electoral process.)

In addition to the classified documents case, Trump faces two criminal cases over his efforts to hold onto power following the 2020 election — one federal case brought by Smith and another brought in state court in Georgia — and is set to stand trial in April in New York over allegations that he falsified business records to cover up a hush money payment ahead of the 2016 election. Cannon is yet to set a trial date in Florida.

For Smith to move ahead with an appeal, Cannon must rule on whether the Presidential Records Act allowed Trump to hold onto classified records after leaving office, a charge central to the case against the former president.

“Problem is, Smith cannot appeal her yet on this issue until she issues a specific order on the jury instructions,” Aronberg said. “If she wants to call Smith’s bluff, then Judge Cannon should announce that her jury instructions are adopted, or dismiss the case based on her understanding of the PRA.”

In a Thursday ruling, the judge instead rejected Trump’s bid to have the charges against him thrown out on the grounds that he is protected by the act.

And if Cannon delivers the instructions to jurors based on a premise federal prosecutors dispute, the government cannot appeal a jury’s acquittal down the line. That means Smith is under pressure to ensure Cannon makes a ruling, prosecutors and defense attorneys said.

“Smith’s fear is that she will make a final decision on erroneous jury instructions after the trial begins, which will prevent Smith from appealing her decision because of Double Jeopardy rules,” Aronberg said. By demanding Cannon make a decision, the special counsel can appeal the judge and, if federal prosecutors decide, ask the 11th Circuit to remove her because of the appearance of bias.

“He’s trying to force her hand,” said Ken White, a federal criminal defense attorney in Los Angeles. “He is trying to say, ‘I need you to rule on this now,’ and he is dropping cases in his motion that point out that he has the option of seeking extraordinary relief from the circuit if she’s screwing around the jury instructions, and implying this is exactly the type of situation that should motivate the circuit to get involved.”

“If she does something crazy enough — and this jury instruction order is crazy on the order of the stuff that got her to reverse the civil case — it makes it a live possibility that the circuit will send it to somebody else,” White added.

Cannon was blasted by the circuit court two years ago 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 it was reversed.

Replacing Cannon would force a reset in the case, with a broad scope of issues the judge would have to be read in on. This would make a pre-election trial a virtual impossibility.

“This case was never going to trial before the election,” Aronberg said. “She has always given the defense the benefit of the doubt and great deference on scheduling.”

Trump faces multiple charges in the classified documents case, including willful retention of national defense information, false statements and representations, conspiracy to obstruct justice, withholding a document or record and corruptly concealing a document. He has pleaded not guilty to all counts. His co-defendants in the case, Walt Nauta and Carlos De Oliveira, have also pleaded not guilty to related charges.

This article was originally published on NBCNews.com