Jack Smith called Aileen Cannon's bluff as 'the clock is ticking': legal analyst

The judge in Donald Trump's classified documents case is trying to "insulate" the former president — and Special Counsel Jack Smith is calling her bluff, according to former federal prosecutor Joyce Vance.

Vance lasered in on the legal tit-for-tat between U.S. Judge Aileen Cannon and Smith over the proposed jury instructions that Cannon floated in which jurors would be asked to consider whether the top-secret government documents that Trump took from the White House, which included secrets about nuclear weapons programs, could be considered his personal property.

Vance, while appearing on MSNBC's "The Last Word," said that Smith is making almost an ultimatum for Cannon to rule on a motion to dismiss filed by Trump's legal team proclaiming that former president could pick and choose whatever documents he wanted to declassify under the 1978 Presidential Records Act (PRA).

But that is a widely discredited argument among legal experts who say the case is hinged on the Espionage Act — which Smith argues had “no bearing” on Trump’s alleged retention of “national defense information" and called on Cannon's decision to wait until the jury is sitting as "fundamentally flawed."

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"Here's the problem that happens with Aileen Cannon's refusal to issue a ruling on Trump's motion to dismiss under the Presidential Records Act," she said. "The reason Jack Smith says he's entitled to a decision now is that if she rules against him, he can appeal that in advance."

This move would give Smith an out to go over Cannon's head to the 11th Circuit to "second-guess her."

The reality, argues Vance, is that Smith is seeing the chess moves ahead and calling for her to take action now to prevent a double jeopardy situation.

"She's trying to delay ruling on that motion until after the trial starts, and here's why that matters: once the jury is sworn in, double jeopardy attaches; if she dismisses the case in Trump's favor after double jeopardy attaches, Jack Smith can't appeal her," she explained. "He can't retry the case because the government can only try a defendant one time on a set of charges."

Vance believes Cannon is playing favorites and protecting the 45th president.

"So what she's essentially trying to do here is to protect Trump, to insulate him behind a decision that she would make after the jury was impaneled, when the government couldn't try him again, and defeating the government's right to appeal," said Vance.

Vance believes Smith's decision to push the ruling now rather than wait for jury instructions shows he's getting tough and mindful that "the clock is ticking here."

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