Judge Cannon smacks down Jack Smith after he criticized her decisions, threatened early appeal

 April 6, 2024

Special Counsel Jack Smith is not pleased with how U.S. District Judge Aileen Cannon has been handling his classified documents criminal case against former President Donald Trump, and his office made that abundantly clear in a legal filing this week.

That filing, which questioned Cannon's orders and demanded swift action while also threatening pre-trial appeal if Smith didn't like her decisions, led to a sharp rebuke of the prosecutor by the judge, according to Politico.

The flare-up in tensions between Smith and Cannon will likely further fuel the left's accusatory claims that the judge, who was appointed to the bench by Trump in 2020, is showing favoritism toward the former president with her handling of the criminal case against him.

Smith rebukes Cannon's handling of case

Though there have been issues from the start, this particular incident can be traced back to a March 18 order from Judge Cannon that asked both the defense and prosecution to submit proposed jury instructions based on two particular scenarios, both of which were centered on former President Trump's claim that the Presidential Records Act authorized his alleged criminal conduct.

The first scenario would allow jurors to decide whether prosecutors proved that the classified documents in Trump's possession after leaving the White House were "presidential" and not "personal" under the PRA, while the second scenario posited that presidents retain "sole authority," unreviewable by courts or jurors, under the PRA to classify documents as "personal" or "presidential" for record-keeping purposes.

In an April 2 response filing to that order, Special Counsel Smith's office lambasted the judge for basing those scenarios on "an unstated and fundamentally flawed legal premise" raised by Trump -- that the PRA takes precedence over the Espionage Act provision he was charged under -- and asserted that presenting that "wrong" premise to a jury would "distort the trial."

The prosecution further argued that "the PRA should not play any role at trial at all," but, "if the Court wrongly concludes that it does," then Smith needed to be notified "well in advance of trial" so that the government would "have the opportunity to consider appellate review well before jeopardy attaches."

The filing went on to further criticize the judge for even entertaining Trump's PRA defense claim, which the prosecution vigorously disputes, though it did include the requested proposed jury instructions based on "the inaccurate legal premises reflected in the Court’s order."

Cannon smacks down Smith

Just two days after Special Counsel Smith's response filing, Judge Cannon issued an April 4 order that denied former President Trump's motion to dismiss the charges based on his PRA defense claim, albeit only on a "pre-trial basis," and seemingly left a door open for Trump to raise that defense again at a later date.

But the judge also used that order to address Smith's criticisms, demands for swift action, and threats of pre-trial appeal, and it was clear that she was not happy with the situation.

"Separately, to the extent the Special Counsel demands an anticipatory finalization of jury instructions prior to trial, prior to a charge conference, and prior to the presentation of trial defenses and evidence, the Court declines that demand as unprecedented and unjust," Cannon wrote.

"The Court’s Order soliciting preliminary draft instructions on certain counts should not be misconstrued as declaring a final definition on any essential element or asserted defense in this case," she continued. "Nor should it be interpreted as anything other than what it was: a genuine attempt, in the context of the upcoming trial, to better understand the parties’ competing positions and the questions to be submitted to the jury in this complex case of first impression."

Will he or won't he appeal?

As for Special Counsel Smith's threats of immediate appeal if he doesn't like how Judge Cannon ultimately rules on certain pre-trial motions, she added, "As always, any party remains free to avail itself of whatever appellate options it sees fit to invoke, as permitted by law."

Left-leaning legal analysts have already begun urging Smith to make good on his threats and ask the appeals court to overrule Cannon, if not have her removed from the case entirely and replaced with another judge who would presumably act more favorably to the federal prosecutors.

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