Ex-prosecutor: Court may “politely recuse” Judge Cannon after Jack Smith calls out “clear error”

Special counsel Jack Smith in a recent court filing cited case law that Judge Aileen Cannon, the MAGA-appointed federal judge overseeing Donald Trump's Mar-a-Lago classified documents case, previously worked on as a way of reminding her why she should rule against the former president.  

As Trump's team of attorneys continues to paint his criminal case as a Biden-administration-led, politically motivated "witch hunt," they've also asked the Cannon mandate Smith and his team of prosecutors to turn over the trove of evidence they have against Trump, despite the fact that the defense team has already received more than a million pages of evidence, per The Daily Beast.

As Trump's legal team's strategy to delay the trial becomes increasingly apparent, Smith's filing pointed toward a case from Cannon's past, recalling how she worked to establish boundaries around such tactics. 

The Daily Beast noted that Cannon, while serving as a federal prosecutor for the Department of Justice in South Florida in 2015, worked on a sting operation in which two men were convicted after trying to loot a phony stash house. One of the men appealed his conviction, arguing that he was the victim of "unfair prosecution" because the majority of stash house sting operations see Black and Hispanic people apprehended. In 2021, Cannon's former team won the case when the 11th Circuit Court of Appeals emphasized the need for a "demanding burden" to make such a claim. Though she was already acting as a judge, Smith's citing of the aptly named U.S. vs. Cannon is meant to underscore Trump's own claim of "selective prosecution" in his documents case. “A request to discover such material is, instead, ‘governed by well-settled and binding precedent in [Armstrong] and [Jordan,]” prosecutors wrote. 

Though lawyers often cite past cases, as The Daily Beast pointed out, Smith's "decision to point Cannon to her own case also sends a message — and not one meant for Trump’s lawyers or even the American public paying close attention to the historic case."

"Smith’s choice to cite case law that Cannon actually worked could be viewed as a reminder to the judge that she knows better than to side with Trump on this — especially on such a narrow topic as bias-alleging document requests," The Daily Beast's Jose Pagliery wrote.

“She worked on almost no cases. She had very little courtroom experience. To find a case that actually she worked on and that resulted in a published opinion is in itself improbable,” Catherine Ross, a professor emeritus at George Washington University Law School, told the Daily Beast. “It’s a brilliant maneuver, and particularly with a judge who had so little trial background,” she said.

“It’s not quite the same as confronting a judge with an opinion they wrote or joined,” Ross added. “I don’t think selective prosecution comes up often. There are very few people who can pass the laugh test on claiming that. I think they have her locked in a pretty tight spot—if she were a normal judge.”

Smith's team last week accused Cannon of making a "clear error" by granting Trump's motion to unredact portions of their motions in discovery despite the Justice Department's concern about the safety of witnesses in the case. 

Smith's filing claims that "discovery material, if publicly docketed in unredacted form as the Court has ordered, would disclose the identities of numerous potential witnesses, along with the substance of the statements they made to the FBI or the grand jury, exposing them to significant and immediate risks of threats, intimidation, and harassment." The filing adds that threats have already “happened to witnesses, law enforcement agents, judicial officers, and Department of Justice employees whose identities have been disclosed in cases in which defendant Trump is involved.”

Former U.S. Attorney Harry Litman warned that Cannon put herself "in a box of her own making" with the order.

"Remember, we have this ongoing drama with her," Litman told MSNBC of Cannon's odd rulings seeming to push Trump's trial until after the 2024 presidential election. "She's been slow-walking the case and she had these early sort of debacles that the 11th Circuit reversed."

"We've been wondering will she make another clear misstep that would give Smith the wherewithal to say maybe it's time to recuse her," he added. 

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Former federal prosecutor Andrew Weissmann, who served on special counsel Bob Mueller's team, likewise claimed that Cannon could be facing an imminent recusal by the 11th Circuit Court of Appeals.

"So now there is this issue, with respect to divulging the name of someone who is under investigation, which could interfere with a criminal investigation. We don't know about the underlying facts of that so it is somewhat guesswork," Weissmann told MSNBC. 

"What I can tell, you as a — I have been in a prosecutor for many years — that does not get disclosed when you are doing an investigation," he added. "To me, it is so reminiscent of the same problem she had during the investigation. So, if she continues this route, it will be interesting to see whether Jack Smith gets to the 11th Circuit and whether they sort of politely recuse her, essentially, which happens when the circuit hears the case and basically says 'When we send this back, we think that the better course is for a different judge to hear it.'"