Speculation grows that SC Smith is quietly preparing to ask 11th Circuit to remove Judge Cannon or force new trial date in classified docs case

 May 17, 2024

U.S. District Judge Aileen Cannon, who is presiding over former President Donald Trump's classified documents case in Florida, formally canceled last week the tentatively set May 20 trial start date and indefinitely delayed the proceedings to allot more time to deal with the complex procedures for handling classified materials in court.

Special Counsel Jack Smith, who has repeatedly and urgently demanded a rapid timeline to bring the case to trial before November's election, has surprisingly not yet responded publicly to the judge's indefinite delay of his effort to convict and imprison Trump, according to The New York Sun.

One possibility for Smith's somewhat baffling silence on the matter is that it could be a cover for his quiet pursuit of an "extraordinary remedy" to try and bypass Judge Cannon's delay with a "writ of mandamus" filed with an appellate court to either force the judge to set a swift trial date or have her removed from the case altogether.

Classified documents trial indefinitely delayed

On May 7, in a five-page order, Judge Cannon established a series of new deadline dates over the next couple of months for various pre-trial motions, hearings, and reports, particularly involving the complex and time-consuming sections of the Classified Information Procedures Act that strictly dictates how classified materials are dealt with in a courtroom setting.

"The Court also determines that finalization of a trial date at this juncture -- before resolution of the myriad and interconnected pre-trial and CIPA issues remaining and forthcoming -- would be imprudent and inconsistent with the Court’s duty to fully and fairly consider the various pending
pre-trial motions before the Court, critical CIPA issues, and additional pretrial and trial preparations necessary to present this case to a jury," Cannon wrote.

"The Court therefore vacates the current May 20, 2024, trial date (and associated calendar call), to be reset by separate order following resolution
of the matters before the Court, consistent with Defendants’ right to due process and the public’s interest in the fair and efficient administration of justice," she added.

Smith could ask 11th Circuit to force Cannon to set a trial date

That order was undoubtedly infuriating to Special Counsel Smith, given his unmistakable haste to try and convict former President Trump before the election in November, but according to the Florida district court's docket, he has yet to respond aside from a sealed filing on Thursday that pertains to a separate dispute with the defendants over redactions in previously filed motions and exhibits.

The NY Sun suggested in its report that Smith's apparent silence in response to Judge Cannon's indefinite delay of the trial could be because he is currently drafting a so-called "writ of mandamus" to file with the 11th Circuit Court of Appeals, which provides jurisdictional oversight on federal courts in Florida, to have that court force the judge to set a new trial date.

Writs of mandamus are generally considered to be "an extraordinary remedy, which should only be used in exceptional circumstances of peculiar emergency or public importance," according to the Justice Department, in which prosecutors can ask a higher court to instruct a lower court to "properly fulfill their official duties or correct an abuse of discretion."

In this case, the "exceptional circumstances" and "peculiar emergency" for Smith would be his undeniable, if not explicitly stated, desire to bring Trump to trial before the election -- though he may be compelled to come right out and say as much, something he is obviously reluctant to do as it would thoroughly expose the partisan motivations behind his prosecutorial effort.

Smith could ask for Cannon to be removed from the case

Of course, some legal analysts suspect that Special Counsel Smith is ready to move beyond Judge Cannon and, rather than ask the appellate court to force her to set a new trial date before the election, could file a writ of mandamus that asks for her to be removed and for the case to be reassigned to another judge, according to Salon.

However, those same legal experts cautioned that such a bold move to try and oust Cannon from the case would be a "big gamble" and "last resort" that could backfire in that it would be a "long shot" with an "exceptionally high bar" for success that would "almost certainly lose."

That said, the unsubtle threat from Smith of going over Cannon's head to the 11th Circuit could also be little more than a feint from the special counsel to try and pressure the judge into moving with a bit more haste on the proceedings without actually involving the appellate court.

Whichever route Smith may take in that respect should become evident fairly soon.

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