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Jack Smith’s ‘Blistering’ Response to Judge Cannon Could ‘Remove Her From the Case’: Experts

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Special Counsel Jack Smith in a near-midnight filing Tuesday responded to U.S. District Judge Aileen Cannon’s request to “engage with” two possible scenarios for jury instructions in the Espionage Act case against Donald Trump even before she has set a trial date.

Legal experts say Smith had no choice but to respond as strongly as he did given Judge Cannon’s proposed jury instructions are – they and Smith say – ““fundamentally flawed,” and based on a misinterpretation of law. Some noted if the case were to go to trial under a false legal theory held by the judge, the Special Counsel could not appeal any possible “not guilty” verdict.

“It’s unusual for [federal] prosecutors to be this aggressive with a judge & well warranted here. She left them with no other choice,” observes professor of law, MSNBC and NBC News legal analyst, and former U.S. Attorney Joyce Vance. “The Special Counsel cites law from the 11th Circuit’s sister circuit, the Fifth, that lets them bring a writ of mandamus asking the appellate court to correct a district judge’s decision to use a clearly erroneous jury instruction that could lead to acquittal.”

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Vance also says Smith had to “spoon feed” Judge Cannon.

MSNBC and NBC News legal analyst and former federal prosecutor Glenn Kirschner says acquittal is Cannon’s goal: “In a new court filing, Jack Smith goes directly after Judge Cannon’s lawless proposed jury instructions. And he threatens to appeal (mandamus) her. He’s right – Cannon is trying to nefariously orchestrate an acquittal for Trump.”

In his filing Smith threatened he would go over Cannon’s head to ask the higher court rule against her, to avoid a faulty acquittal.

“In Jack Smith’s blistering filing yesterday on Judge Cannon’s aberrant proposed jury instructions, Jack tells her she ‘must’ rule ‘promptly’ so he can weigh appellate options,” writes Lawfare senior editor Roger Parloff.

“Extraordinary late night filing by Special Counsel Smith sets forth how Judge Aileen Cannon could doom the prosecution by delaying ruling on her legally flawed jury instructions until after the trial starts (when Double Jeopardy attaches) thus depriving prosecution of any ability to cure,” writes former federal prosecutor Shanlon Wu.

READ MORE: Johnson: J6 Rioters and Insurrectionists Just ‘Happened to Be Walking Through the Building’

The Special Counsel’s Office “team explicitly states that this kind of scenario is what a writ of mandamus exists to address – implicitly warning Cannon that they view her position as not only indefensibly flawed legally but saying the quiet part aloud that that they are on to the possibility that the timing of her ruling could be substantively fatal to successful prosecution of Trump – ever,” he continued. “Now the question becomes whether Judge Cannon will quickly rule or delay further.”

National security attorney Brad Moss says, “Jack Smith puts Cannon on notice that he has had enough with his weird game,” apparently referring to Trump’s legal strategy of invoking the Presidential Records Act as a defense. “The PRA angle is a question of law, not fact, and if she believes Trump’s PRA defense she should grant his motion and let Smith take this to the 11th circuit already.”

“Oh,” Moss adds, “and they make clear Tom Fitton [i]s the source of Trump’s ridiculous legal theories, as all the reporting made clear ages ago.”

Fitton is conservative activist Tom Fitton, who is not an attorney but a right-wing pro-Trump activist, president of Judicial Watch, and reportedly a member of the far-right Council for National Policy.

Former federal prosecutor Randall Eliason, who teaches white collar crime law at The George Washington University Law School adds more insight into the Fitton connection.

“One interesting thing in this pleading is the history of how the bogus defense that these were personal records Trump was allowed to keep was invented by Judicial Watch and shared in a Tweet w/ Trump, who then adopted it even though his own people said it was wrong.”

Politico’s Kyle Cheney sums up Smith’s filing.

“Prosecutors are emphatic: Trump’s treatment of presidential/personal records is both a ‘fiction’ he invented belatedly (at urging of Tom Fitton) to justify keeping records he was plainly not authorized to have,” Cheney writes. “And whether he designated them ‘personal’ is irrelevant.”

MSNBC host and legal contributor Katie Phang writes, “Judge Cannon has been given fair warning over and over again by Special Counsel Jack Smith. I guess some folks have to learn the hard way.”

NYU Law professor, MSNBC legal analyst, and former FBI General Counsel Andrew Weissman, suggesting a three strikes rule, says Judge Cannon could be removed from the case. He writes that if Smith’s motion “gets to the 11th Circuit, it will both reverse Cannon again — AND I think it will remove her from the case- 3 reversals is more than enough for this inexperienced judge, who gets the law wrong and always in Trump’s favor.”

READ MORE: Buttigieg Schools Fox News Reporter Upset Biden Is ‘Shoving’ EVs ‘Down Consumers’ Throats’

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Fox News Host Suggests Trump ‘Force’ Court to Throw Him in Jail – by Quoting Him

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The Fox News host who targeted a juror serving on Donald Trump’s criminal New York trial is now suggesting the ex-president should violate his gag order and “force” the court to throw him in jail, by quoting the Fox News host.

Jesse Watters came under fire earlier this week for profiling juror number two, sharing possibly identifying information published by a myriad of reporters but then using that information to pass judgment on her ability to serve.

“I’m not so sure about juror number two,” Watters concluded on Fox News.

Jurors, at the judge’s direction, were to remain anonymous, for their protection and the protection of the trial.

The judge excused her, after she said she felt she was not able to be impartial because friends and family were calling her asking if she had been chosen to serve on the Trump trial, after the media blitz.

New York Supreme Court Judge Juan Merchan admonished the press for reporting the information, but some news outlets appeared to ignore his warning.

Watters on Wednesday “did a segment with a jury consultant, revealing details about people who had been seated on the jury and questioning whether some were ‘stealth liberals’ who would be out to convict Trump,” the Associated Press reported.

READ MORE: Gaetz: ‘Corrupt’ Republicans Could ‘Take a Bribe’ and Throw House to Dems, Blocking Trump Run

Trump later posted Watters’ quote on his Truth Social platform, leading some, including New York prosecutors, to ask the judge to cite him for allegedly breaking his gag order.

Judge Merchan ordered Trump to not mention witnesses, jurors, prosecutors, court staff, or the family members of prosecutors and court staff, CNN has reported.

New York prosecutors told Juge Merchan Trump has violated the gag order at least ten times.

“Prosecutor Christopher Conroy described the ‘most disturbing’ example as a social media message Trump posted on Wednesday evening quoting a Fox News host as saying, ‘They are catching undercover Liberal Activists lying to the Judge in order to get on the Trump Jury,'” Politico reports.

That host was Jesse Watters.

RELATED: ‘Afraid and Intimidated’: Trump Trial Juror Targeted by Fox News Dismissed

Friday afternoon, Watters appeared to egg Trump on, urging the ex-president to violate the gag order.

“I would make them put me in jail,” Watters said on Fox News. “I would have a tweet about something perhaps I said on ‘The Five’ or ‘Jesse Watters Primetime,’ and I would force them to throw me in jail.”

Watch Watters’ remark below or at this link.

 

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Gaetz: ‘Corrupt’ Republicans Could ‘Take a Bribe’ and Throw House to Dems, Blocking Trump Run

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U.S. Rep. Matt Gaetz (R-FL) says some of his fellow House Republicans would “take a bribe” to throw the razor-thin GOP majority to the Democrats if a far-right faction calls up a motion to oust Speaker of the House Mike Johnson, allowing Democrats to hand the gavel to the Minority Leader, Hakeem Jeffries. he warned if that happens, Democrats would immediately declare Trump ineligible to be President, pack the U.S. Supreme Court, and pass numerous laws like the American Rescue Plan.

“I do believe in a one seat majority there could be one or two or three of my colleagues who would take a bribe in one form or another in order to deprive the Republicans of a majority at all,” Gaetz said Friday on his podcast (video below.)

He added, “the risk that one or two of my corrupt Republican colleagues might take a bribe, take a walk, feign an ailment and flip this thing to the Democrats is a risk that is too high for me at this time.”

Gaetz’s fellow far-right Florida Republican member of Congress, Anna Paulina Luna, told listeners, “I heard that when, if and when the motion vacate is introduced, that there will be immediate resignations of a couple of more moderate members of Congress. And in the event that that happens, that ultimately means it does go to a Democrat speaker.”

RELATED: Jeffries Vows Democrats Will Ensure Ukraine Aid Passes as Johnson Defectors Grow

U.S. Rep. Marjorie Taylor Greene (R-GA) last month filed a “motion to vacate,” which she can use at any time to force a vote to oust the GOP Speaker, Mike Johnson. U.S. Rep. Tim Massie (R-KY) and just today, U.S. Rep. Paul Gosar (R-AZ) has signed on as co-sponsors.

Congressman Gaetz told listeners if Democrats do take the House through a force vote to remove Johnson, Democrats would “be declaring Donald Trump an insurrectionist and setting up a barrier to him being able to become the president United States.”

“That’ll be their leadoff hitter, and then the chaser to that shot will be a massive spending package that looks a lot more like the American Rescue Plan. They will blow past every concept of every cap ever imagined. You’ll be looking at Universal Basic Income, you could be looking at packing the Supreme Court.”

Watch a short clip of Gaetz’s remarks below or at this link.

READ MORE: ‘Stop Bringing Up Nazis and Hitler’: Marjorie Taylor Greene Smacked Down by Democrats

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Jeffries Vows Democrats Will Ensure Ukraine Aid Passes as Johnson Defectors Grow

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Democratic House Minority Leader Hakeem Jeffries vowed Friday the majority of Democrats will support Republicans’ Ukraine, Israel, Taiwan, and Gaza foreign aid legislation as Republican Speaker Mike Johnson lost support of another member of his conference to a faction determined to oust him.

“Democrats will provide a majority of our majority as it relates to funding Israel, humanitarian assistance, Ukraine, and our allies in the Indo Pacific,” Minority Leader Jeffries said. “It remains to be seen what Republicans will do in terms of meeting the national security needs of the American people, but it was important for House Democrats to ensure that the national security bills are going to be considered.”

Despite Republicans having a one-vote majority, more Democrats on Friday voted to move the critical and long-awaited foreign aid bills forward than did Republicans.

READ MORE: ‘Stop Bringing Up Nazis and Hitler’: Marjorie Taylor Greene Smacked Down by Democrats

The 316-94 vote included 165 Democrats and 151 Republicans voting yes, and 55 Republicans and 39 Democrats voting no.

Axios’ Juliegrace Brufke posted the list of Republicans voting against their party’s legislation.

Calling it a “rare” moment in modern congressional history to have to rely on opposition party votes to pass legislation, BBC News reports Speaker Johnson’s “hold on power is tenuous, and the legislators who oppose him – and his bid to provide aid to Ukraine – occupy some key positions within the House’s power structure.”

Amid the procedural vote to move the foreign aid funding bills forward, U.S. Rep. Paul Gosar, a far-right Republican of Arizona, announced he is joining Congresswoman Marjorie Taylor Greene (R-GA), and Congressman Tim Massie (R-KY) in formally announcing their will vote to oust Speaker Johnson.

Gosar, like Greene, is reportedly a Christian nationalist. In 2022 CNN reported his “lengthy ties to White nationalists, [a] pro-Nazi blogger and far-right fringe received little pushback for years.”

RELATED: ‘Repercussions’: Democrats and Republicans Stand Against ‘Pro-Putin’ House GOP Faction

“We’ve been very honest in our assessment of the situation from the beginning,” Jeffries on Friday also declared. “At the appropriate time as House Democrats, we will have a conversation about how to deal with any hypothetical motion to vacate.”

“Moscow Marjorie Taylor Greene, Massie, and Gosar are quite a group. But central to our conversation is to make sure that the national security legislation in totality is passed by the House of Representatives.”

Watch the videos above or at this link.

 

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