DOJ is waiting for Aileen Cannon to make 'another misstep' before pouncing: Former Mueller prosecutor

The Department of Justice probably won't ask to move federal judge Aileen Cannon off the Mar-a-Lago documents case until she issues a questionable ruling, and legal expert Andrew Weissmann said special counsel Jack Smith has multiple options to respond.

The Florida district court judge was assigned to oversee the trial despite a series of controversial rulings in an earlier phase of the investigation, and Weissmann told MSNBC's "Morning Joe" that he doubts the Department of Justice will ask for another judge right away.

"There's no signs she's going to remove herself," said Weissmann, who worked under special counsel Robert Mueller. "There's a couple things that could happen. We could see the Department of Justice move to recuse her, and then she says no to seek to go to the court of appeals. The other thing they can do, probably more likely, is wait for her first erroneous ruling, and given that she's had two decisions reversed in scathing opinions by a conservative 11th circuit court, including, by the way, judges appointed by Donald Trump, so they did their duty and reversed her, saying that what she did was antithetical to the rule of law. They could wait for her to make another misstep, appeal that and in that appeal ask it be reassigned to a different judge. That's a route that, while it's not common, does occur. That would be the third time that she was reversed, not just in any case, but in this very investigation. I think that is still something that could happen."

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"A friend of mine who is a federal judge said to me she wouldn't have gotten out of bed that morning, she would have been so embarrassed," he added. "The real issue is this was the first reversal of her. People thought, okay, it's a brushback, she'll learn her lesson and adhere to the facts of the law and it had no deterrent effect at all. Her second reversal continued because of the same conduct. That's why it's hard to see she's going to change her stripes at this point. Basically the DOJ could wait for another instance and use that as the vehicle to get her removed from the case."

If Cannon moves to dismiss the case or delay it past the 2024 election, and an appeals court fails to reverse her rulings, the special counsel has yet another move to hold Trump accountable by charging him in New Jersey.

"One of the curious things in the Florida indictment is in paragraphs 32 through 36, where the two most serious allegations are in those paragraphs, and involves not just the retention of documents, but the possession of documents that are top secret, but the dissemination of information in those documents to a third party," Weissmann said. "That's a much more serious crime, not just the risk of dissemination, but actual dissemination. Those instances are described in those paragraphs, but they're not separately charged. In other words, they're not counts against the former president. That's curious."

"Why are they not charging those things?" he added. "One of the possible answers to that is that those two instances happened in Bedminster which is in New Jersey, not Florida. The reason the current case is in Florida is because that's where the crime occurred. This dissemination happened in Bedminster. It gives the DOJ a chance to see how this case goes, watch what's happening with Judge Cannon, see how disastrous she might be, as she was in the investigation. These are definitely charges that could be brought in New Jersey. Dissemination is a really serious crime."

Watch the video below or at this link.

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