Why Jack Smith may have a shot at getting judge removed from Mar-a-Lago docs case

29 May 2024

Judge Aileen Cannon has repeatedly delayed the trial for special counsel Jack Smith's Mar-a-Lago documents case against former President Donald Trump. The trial is now on hold indefinitely, inspiring some of Cannon's critics to argue that Smith should do everything possible to get her removed from the case — which, those critics acknowledge, is much easier said than done.

But according to MSNBC legal columnist Jordan Rubin, Cannon may have just given her critics another argument for assigning a different judge to the case.

On Tuesday, May 28, Cannon issued a biting rejection of Smith's request for a partial gag order in his case. Smith's office argued that Trump was endangering law enforcement by falsely claiming that an FBI search for classified government documents at Mar-a-Lago in 2022 included an authorization of "lethal force."

Trump even claimed that the search was part of an assassination plot by President Joe Biden and other Democrats — a claim that U.S. Attorney General Merrick Garland attacked as irresponsible and "extremely dangerous." Trump said that Biden was "locked and loaded" and "ready to take me out."

Rubin explains, "On Friday, (May 24) special counsel Jack Smith moved to modify Donald Trump's release conditions in the classified documents case, asking U.S. District Judge Aileen Cannon to clarify that the defendant can't make statements putting law enforcement in danger. The special counsel cited 'several intentionally false and inflammatory statements recently made by Trump that distort the circumstances under which the Federal Bureau of Investigation planned and executed the search warrant at Mar-a-Lago'…. Smith told Cannon, in his motion, that Trump's false suggestion that agents were complicit in a plot to assassinate him has exposed the agents 'to the risk of threats, violence, and harassment.'"

Trump's attorneys, in response, attacked Smith's team of federal prosecutors for trying to "impose an unconstitutional gag order on President Trump."

"As ever," Rubin observes, "the lawyers in the case are living on different planets, and Cannon's response shows that she's still living on something closer to Trump's. In an order Tuesday, the Trump appointee who's been slow-walking the case denied Smith's motion 'for lack of meaningful conferral.' She also chastised the government's use of 'editorialized footnotes' and what she deemed its lack of professional courtesy."

Rubin continues, "Importantly, however, she denied Smith's motion 'without prejudice,' meaning that the Justice Department can try again after complying with the judge's procedural dictates…. Given her handling of the case thus far and the tone of her latest order, Smith may have a tough task with this judge yet again — one that could finally lead to the special counsel taking Cannon up on appeal and possibly building a case to try and get a new judge to preside."

Jordan Rubin's full MSNBC column is available at this link.

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