Special Counsel Jack Smith faces a "no-win situation" if he chooses to react to the latest ruling from the judge overseeing Donald Trump's classified records trial, legal experts have said.
Judge Aileen Cannon, who was nominated to the bench by Trump, has faced frequent criticism for her decisions in the federal criminal case which appear to have favored the former president.
The latest decision from Cannon has renewed calls for Smith to try to have her removed from the case. It revolves around Trump and his lawyers' disputed arguments put forward in a motion to dismiss stating that the Presidential Records Act allowed the Republican undisputed authority to categorize classified materials as his personal property. This would mean Trump did not break any law by removing them from the White House in January 2021.
On Monday, Cannon asked lawyers for Trump and Smith's office team to submit "competing scenarios" laying out possible jury instructions regarding the interpretation of the Presidential Records Act, including whether a president "has sole authority" to categorize records as "personal or presidential" during their time in office.
The move was criticized as potentially asking a jury to lean towards Trump's views of the Presidential Records Act, or allow Cannon to dismiss the case entirely, without giving Smith a chance to appeal against any decision to the US Court of Appeals for the 11th Circuit.
Neama Rahmani, former federal prosecutor and president of West Coast Trial Lawyers, told Newsweek that Smith could try and have Cannon removed over the jury instructions request, or refuse to comply, both of which could be detrimental to the federal prosecutor in his attempt to convict Trump.
"Judge Cannon's bizarre ruling is yet another instance that clearly benefits Trump and demonstrates that she is in over her head as a judge. The issue is a question of law that she should decide, not a question of fact for the jury," Rahmani said.
"Smith is in a no-win situation because an appeal or writ will delay the trial even further, but he can't allow Cannon to abdicate her responsibility and make the possibility of jury nullification even more real."
A similar claim was made by former Deputy Assistant Attorney General Harry Litman in a scathing opinion piece for the Los Angeles Times, in which he suggested Cannon has "truly crossed the line into running interference" for the former president with her latest decision.
"Cannon may have hit upon a strategy that gives Trump the delay he wants and then dismisses the case once a jury has been sworn in—while never exposing herself to being reined in or forced off the case by the 11th Circuit," Litman wrote.
"All of which leaves Smith facing a tricky choice. He can adhere to the letter of the judge's order and acquiesce in potentially laying the groundwork to dismiss the case at an irremediable point. Or he can refuse to go along, risk Cannon's ire and try to position the prosecution to appeal if she actually does something reviewable," Litman added.
"It's not an easy call—especially when the umpire seems to be playing for the other team."
A spokesperson for Smith's office declined to comment.
Elsewhere, Joyce Vance, a frequent Trump critic and former Barack Obama-appointed attorney, called on Smith to file a motion to recuse Cannon following her jury instructions request, despite the delay it will cause for the trial.
The timing of Trump's federal classified documents case, expected to be pushed back beyond its current scheduled date of May 20, has additional significance.
If Trump, the presumptive 2024 Republican nominee, beats President Joe Biden in November's election before the classified documents trial has taken place, Trump could then order the Department of Justice to drop the federal case into him once he enters office.
"Filing a motion for recusal now would almost certainly mean the case can't be tried ahead of the election because of the time it would take a new judge to get up to speed and the pendency of issues regarding the use of classified information," Vance wrote in her Civil Discourse blog.
"But it would be better to run the risk of delay than it would be to give Cannon the opportunity to derail the prosecution in a way that would give her the final say over the fate of the case."
Uncommon Knowledge
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About the writer
Ewan Palmer is a Newsweek News Reporter based in London, U.K. His focus is reporting on US politics, domestic policy ... Read more
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