Special Counsel Jack Smith rebukes judge in Trump documents case

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Special Counsel Jack Smith issued a highly unusual rebuke of the judge overseeing former President Donald Trump’s criminal classified documents case late Tuesday, cautioning that the legal path she’s pursuing “is wrong.”

Trump stands accused of violating the Espionage Act by stashing hundreds of classified documents at Mar-a-Lago after leaving office.

Smith said in a filing that briefings ordered by U.S. District Judge Aileen Cannon — who Trump nominated to the bench — show she has a “fundamentally flawed” understanding of the case that has “no basis in law or fact.”

The case has been met with meandering delays, and Cannon has entertained curious legal arguments that have left experts baffled. This tangle raises the likelihood that the case will not go to trial before the November election, despite both sides saying they could be ready by the summer.

The confrontation between prosecutor and judge came after Cannon last month issued an unusual order that suggests she’s open to the defense’s claim that Trump could declare some classified documents as his personal property, potentially shielding him from prosecution.

The order instructed lawyers to file proposed jury instructions that seemed to embrace Trump’s claims that he could legally take classified documents from the White House. It was seen as particularly odd given that jury instructions are usually determined on the eve of a trial, but no trial date has been set in this case.


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This was prosecutors’ ‘strongest rebuke yet’ of Cannon

Sources:  The Washington Post, CNN, Salon

Smith’s filing “represents the most stark and high-stakes confrontation yet between the judge and the prosecutor,” The Washington Post reported, while CNN called it “prosecutors’ strongest rebuke yet” of Cannon’s handling of the case.

While Smith’s response to Cannon’s order was “forceful,” it was also ”appropriate,” former federal prosecutor Neama Rahmani told Salon. Several experts told the publication that Smith’s filing essentially puts Cannon on notice, with Rahmani adding that Smith’s threat of appeal means “she’s got to think long and hard about this order that she’s gonna issue.”

Cannon’s jury instruction order baffled experts, benefitted Trump

Sources:  The Washington Post, The Guardian

Cannon “is giving credence to arguments that are on their face absurd,” one former federal judge told The Washington Post after the judge released her jury instruction order. The Guardian accused Cannon of “entertaining [Trump’s] most brazen defenses.”

The Los Angeles Times’ senior legal affairs columnist said the order was “a completely loony way to address Trump’s motion to dismiss” and added that the judge “has truly crossed the line into running interference for the former president who put her on the bench.”

Rebuke could mean Smith is getting closer to requesting Cannon’s removal

Sources:  The New York Times, Newsweek

Prosecutors could ask Cannon to remove herself from the case, an effort she would almost certainly reject, pushing the question to the U.S. Court of Appeals for the 11th Circuit. But, as The New York Times pointed out, “recusal motions require prosecutors to point to flawed decisions. And so far, Judge Cannon has largely avoided making decisions, complicating any effort to get rid of her.”

Multiple attorneys told Newsweek they think the 11th Circuit would remove Cannon if her jury instructions were adopted. “Jack Smith is close to pushing the nuclear button to ask the 11th Circuit to intervene and remove Judge Cannon from the case,” one said.