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.
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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.”
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