Jack Smith has a pre-appeal option to take on Judge Cannon: ex-prosecutor
April 04, 2024
Special counsel Jack Smith's angry filing accusing Judge Aileen Cannon of slow-walking rulings in the Mar-a-Lago classified documents case appeared to have a partial effect, with the right-wing judge moving on Thursday to deny former President Donald Trump's Presidential Records Act defense as grounds to dismiss the case — but she reserved the right to adopt Trump's overbroad view of the law at trial, still refusing to issue a final ruling on the matter.
Smith has dropped subtle threats he could go to the 11th Circuit to force her to do so — but he actually has another option, former federal prosecutor Mary McCord told MSNBC's Chris Hayes.
"What are Jack Smith's options, given the order and also the tone of Aileen Cannon today?" asked Hayes.
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"That's the $65,000 question," said McCord. "And this has been so unique to Judge Cannon all along. She issues rulings that aren't really complete or definitive rulings, or what we call final orders that are appealable, and that's what she's done here. She said right now, at this point, based on the indictment, the PRA does not provide a reason to dismiss, leaving open what we've been talking about."
"Right now, there's not a final order for a traditional appeal," McCord continued. "There is the prospect of seeking a writ of mandamus, and to do that, what you're doing is you're going to the Court of Appeals, like you would on appeal, but you don't have a final order to appeal and you're saying that the judge made a clear and indisputable error, here it would be not addressing the legal question that Jack Smith asked her to address, that there is no other alternative to obtain appeal, and that this order would be appropriate."
That being said, McCord added, "I think there's another option before going for a writ of mandamus. If I were Jack Smith, I would be thinking about filing a motion in limine, which is Latin for 'at the threshold,' it means a preliminary motion that usually is filed to seek to preclude the admission of evidence or argument at trial."
"It's ruled on before trial, so that the jury won't be prejudiced by evidence that is introduced or argument," said McCord. "And there's an obligation under the federal rules of criminal procedure for a judge to rule on pretrial motions where the failure to rule would preclude appellate review. If Jack Smith were to file a pretrial motion like that, a motion in limine, and she refused to rule on it or ruled against him, he could at that point seek the mandamus. That's a theory I'm thinking that might avoid some of the problems with there not being a final order."
Watch the video below or at the link here.
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