'Universally rejected arguments': Why Cannon’s 'unusual' approach opens door for 'Hail Mary' defense

In her South Florida courtroom, Judge Aileen Cannon has been listening to arguments against special counsel Jack Smith's role in the Mar-a-Lago documents case. Former President Donald Trump's lawyers are arguing that Smith was improperly appointed to the case because Attorney General Merrick Garland and the U.S. Department of Justice (DOJ) did not get him confirmed via the U.S. Senate — a claim that Smith thoroughly rejects.

Former Deputy Assistant U.S. Attorney General Tom Dupree discussed the state of Smith's Mar-a-Lago case during a Tuesday morning, June 25 appearance on CNN.

Dupree told CNN's John Berman, "Judge Cannon has shown that she's someone who likes to have lawyers arguing in her courtroom. There's some judges who decide cases on the papers in the briefs. Judge Cannon is not one of them. This is unusual, in my experience — that she would hold what looks to be three pretty much full days of hearings, legal arguments, constitutional arguments presented to her by the lawyers to make sure she gets it right. I think part of it is that she wants to make sure that she understands these issues. She's relatively new to the bench."

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Dupree continued, "These are complicated issues, but of course, one consequence of all of this is that it does delay the proceedings substantially."

The former deputy assistant U.S. attorney general noted, however, that in the past, courts have upheld DOJ's appointment of special counsels as perfectly legitimate.

"Defendants commonly challenge the qualifications and the serviceability of the independent counsel and fail," Dupree told Berman. "I think she wants to kick the tires a little bit on this, make sure she understands the law. She invited Amicus participation, meaning not parties to the case…. Again, all very unusual. But this is an unusual case."

When Berman brought up Cannon's hostility to Smith's request for a partial gag order against Trump, Dupree responded, "Well, look, I think they have to understand what they're dealing with here. They are not dealing with a judge that generally sees their case favorably, and they have to act accordingly. I think that they are making these motions because they do have a legitimate concern that former President Trump's comments were placing the safety of FBI agents in danger."

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Dupree added, "They had to make those arguments. They presented them. I think they learned a little bit of a lesson in that they're going to probably try to tone back the approach that they take with this judge because she doesn't like it when they get aggressive with her."

Dupree also noted that Cannon "does seem to be giving very careful consideration to arguments that have been made before and have been pretty much universally rejected."

The former DOJ official told Berman, "Look, you make these arguments as a defendant in hopes that maybe you get the Hail Mary pass, you strike gold — she's going to throw the case out. Why not make it?"

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