Former White House attorney: Judge could be removed from Trump's documents case

 April 4, 2024

Fox News reported this week that Special Counsel Jack Smith submitted a filing in which he sharply criticized Judge Aileen Cannon, who is overseeing former President Donald Trump's classified documents trial.

According to one legal expert, that controversy could end with Cannon being removed from the case. 

Smith clashes with Cannon over jury instructions

At issue is a request that Smith's team and Trump's defense attorneys each submit sets of hypothetical jury instructions.

Cannon asked that the proposed instructions address scenarios under which Cannon accepted Trump's argument that the Presidential Records Act permitted him to retain classified material after leaving the White House.

In response, Smith filed a brief on Tuesday complaining that Cannon is operating on a "fundamentally flawed legal premise" as the Presidential Records Act (PRA) "should not play any role at trial at all."

"The PRA's distinction between personal and presidential records has no bearing on whether a former President’s possession of documents containing national defense information is authorized under the Espionage Act, and the PRA should play no role in the jury instructions on the elements of Section 793," Fox News quoted the brief as stating.

Smith went on to add that he plans to file an appeal should the judge press ahead with her order regarding jury instructions.

Former White House lawyer: "The 11th Circuit will likely take her off the case"

However, former Trump White House attorney Ty Cobb told CNN the following day that Smith may not just succeed at getting Cannon's jury instruction order reversed.

"I think that Jack Smith — I think the filing today makes it plain that she has to rule, and if she doesn’t rule under either scenario, they'll be in a position to take her up to the 11th Circuit," The Hill quoted Cobb as saying.

Cobb pointed to how the 11th Circuit has previously ruled against Cannon, stating, "And I think the 11th Circuit will likely take her off the case."

Cobb noted that the 11th Circuit has previously rebuked Cannon's handling of the case, which has been tremendously delayed under Cannon.

Observers predict Trump halt federal cases if elected

Cobb went on to characterize the delays in Trump's case as being "extraordinary" and called it "remarkable" that Cannon has yet to set a trial date.

"I mean, yes, she may be incompetent, but at this stage of the game, her incompetence is so gross that I think it clearly creates the perception of partiality, and her attempt to put her thumb on the scale. So, I think that should disqualify her," he added.

Some observers have predicted that if Trump is elected in November before his federal cases have concluded then he will likely order the Justice Department to simply stop prosecuting him.

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