WASHINGTON — Special counsel Jack Smith could soon seek to have the judge presiding over the case of former President Donald Trump’s alleged mishandling of classified documents recused, prosecutors and defense attorneys warn, pressed to “breaking point” over arguments his office said could taint a trial irrevocably.
Smith faulted Judge Aileen Cannon in a scathing rebuke for seeming to take at face value Trump’s “fundamentally flawed” claim around a president’s official and personal records when she asked both sides to put forth two competing versions of instructions for jurors in the case and said her request would “distort” the trial. Smith indicated in that filing that if Cannon ruled against federal prosecutors, this could be a trigger for an appeal to the Eleventh Circuit that could remove her from the case.
“He is close to pushing the nuclear button,” said Palm Beach County State Attorney David Aronberg. “It is a high burden to reach, and it is rarely done, but her proposed jury instructions may have pushed him to the breaking point.”
That proposal for jury instructions, a final version of which would be delivered to jurors at the end of a trial, seemed to consider Trump’s interpretation of how of classified documents could be preserved after leaving office, which is at the center of the charge against him.
Even Trump has weighed in, defending the judge in posts to his Truth Social platform while saying Smith should be “sanctioned or censured” for criticizing Cannon’s recent request for jury instruction proposals.
But instead of backing away, Aronberg said that Cannon, including in a court filing on Thursday explaining her proposed jury scenarios, has stoked these tensions, so Smith may see no option but to appeal.
“Cannon seems to be daring Smith,” he said.
Cannon responded Thursday that when she directed Trump and the special counsel to submit jury instructions framed with two competing scenarios around the Presidential Records Act as it relates to the charges against Trump, this was nothing more than “a genuine attempt … to better understand the parties’ competing positions and the questions to be submitted to the jury in this complex case of first impression.”
The judge also called “unjust” Smith’s request for a prompt ruling on whether the legal premise behind her request is a “correct formulation of the law.” She then appeared to thumb her nose at the special counsel.
“As always, any party remains free to avail itself of whatever appellate options it sees fit to invoke, as permitted by law,” Cannon added.
Trump’s lawyers have maintained that the Presidential Records Act gives Trump the authority to decide whether a record is personal or presidential, including documents with classification markings seized by federal investigators at his Mar-a-Lago estate, and that his determination cannot be overruled by the courts. Smith’s office has characterized Trump’s defense using the Presidential Records Act as “not based on any facts,” and questioned his claim that the documents were made personal while he was still president, saying there is no evidence.
Smith’s office has aired frustrations with Cannon, including over her pace, as Trump fights for more time to press his case in Florida, and where Cannon’s docket includes a slew of legal decisions still to be decided.
In a separate case involving Trump, Smith has argued that there is a “national interest in seeing” that charges against the former president are “resolved promptly.” (Trump says the opposite, that taking a case to trial before the election amounts to interfering with the electoral process.)
In addition to the classified documents case, Trump faces two criminal cases over his efforts to hold onto power following the 2020 election — one federal case brought by Smith and another brought in state court in Georgia — and is set to stand trial in April in New York over allegations that he falsified business records to cover up a hush money payment ahead of the 2016 election. Cannon is yet to set a trial date in Florida.
For Smith to move ahead with an appeal, Cannon must rule on whether the Presidential Records Act allowed Trump to hold onto classified records after leaving office, a charge central to the case against the former president.
“Problem is, Smith cannot appeal her yet on this issue until she issues a specific order on the jury instructions,” Aronberg said. “If she wants to call Smith’s bluff, then Judge Cannon should announce that her jury instructions are adopted, or dismiss the case based on her understanding of the PRA.”
In a Thursday ruling, the judge…
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