Judge Cannon 'basically inviting' Jack Smith to ask for her removal in new filing: expert

On Thursday, Judge Aileen Cannon dismissed Donald Trump's claim that the Presidential Records Act protects him from prosecution for taking government documents when he left office in 2021.

The move came after special counsel Jack Smith submitted an emphatic response telling Cannon that her proposed jury instructions — that would direct jurors to consider that classified documents in the case could be considered personal property of Trump under the PRA — were unacceptable.

Legal analysts pointed out that while the filing deals with the PRA argument, it doesn't fully address the matter.

Taking to the social media site X, former prosecutor Harry Litman pointed out that Cannon's decision kills Trump's attempt to have the case dismissed, but it leaves the possibility that the PRA argument will return during the trial.

"Cannon: Indictment tracks 793(e) [a charge in the Espionage Act] and makes no mention of Presidential Records Act, and specified the nature of charges against Trump adequately. So denied.

"NOW WAS THAT SO HARD?! Though as noted, still leaves room to revisit at trial so disaster scenario not fully closed off."

Former acting solicitor general Neal Katyal agreed, explaining that Cannon is forcing Smith's hand to ask that she be removed from the case.

"She has (weirdly and pointedly) refused to actually decide the issue, despite Jack Smith's warning that double jeopardy would then apply. I think Smith has no choice but to go to the 11th Circuit on mandamus [an order from the court that she fulfill her duties]. It's a tough standard, but it is met here.

@JudicialMermaid Danielle, who writes about the law, also agreed: "I think Mandamus is the only option. Her remarks at the end were basically inviting him to do so. 'The parties remain free to avail itself of whatever appellate options it sees fit to invoke.'"

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Former prosecutor Joyce Vance explained that it may appear like an effort to save face, but "Judge Cannon also vigorously denies what she characterizes as the Special Counsel's request for a final decision on jury instructions."

"The Judge's characterization of what Special Counsel asked for is incorrect. He wanted a ruling on the Presidential Records Act motion, the ruling she has now delivered. And she ruled in his favor," she continued.

Vance's recent column on her Substack addresses this point head-on.

"The short version is that Judge Cannon ducked making a ruling on Trump’s motion to dismiss the prosecution based on the Presidential Records Act (PRA), instead ordering the lawyers for both sides to submit jury instructions for two different scenarios. Each scenario assumed the PRA applies to this case and provides Trump with a defense,"' wrote Vance.

There's also the matter of the jury instructions, which Cannon still hasn't actually addressed.

"Except she won’t decide on the PRA jury instructions and seems to be allowing this to come up after a jury is seated. She is refusing to decide that early in this filing. So where does that leave us?" asked "Jack" podcast co-host Allison Gill.