Legal experts suggest Special Counsel Smith could ask appeals court to remove Judge Cannon from Trump classified documents case

February 22, 2024
by
Ben Marquis

Of the four criminal cases against former President Donald Trump, only one of the four presiding judges -- U.S. District Judge Aileen Cannon, who is overseeing the classified documents case in South Florida -- has acted in a generally fair or favorable manner toward the defendant throughout the pre-trial proceedings.

That, ironically, may result in Judge Cannon being removed from the case by an appeals court, if Special Counsel Jack Smith and the left-leaning legal analysts supporting his anti-Trump prosecution get their way, according to Slate.

Smith and his backers are incensed that the federal judge, who was appointed to the bench by Trump himself in 2020, has dared to occasionally rule against Smith and in favor of the former president on various pre-trial motions.

Smith likely seeking appellate reversal or removal of Cannon

Writing for Slate, left-leaning legal analysts Norm Eisen and Joshua Kolb outlined how Special Counsel Smith is likely preparing to go above Judge Cannon's head and ask the 11th Circuit Court of Appeals to reverse at least one, if not two, recent orders Cannon issued on pre-trial motions that were viewed as overly favorable to former President Trump.

In the first instance, Cannon sided with Trump in opposition to Smith's efforts to file entire evidentiary motions under seal, which included information about potential witnesses, and instead ordered that they be filed publicly with normal redactions for sensitive information.

Smith took the bold step of urging the judge to reconsider that ruling and reverse her "clear error" of allegedly employing the wrong legal standard to the issue that resulted in "unreasonable hurdles" for Smith to clear if he wanted to keep all of that evidentiary information secret from not just the public but also the defendants.

In the second instance that could prompt an appeal to the 11th Circuit, it is alleged that Cannon agreed to grant the defendants access to highly classified information that, again, will be used as evidence against them once the matter eventually reaches trial.

The legal analysts surmised that Smith could bypass Cannon and ask the appeals court to overrule her on those two orders -- the 11th Circuit already overturned Cannon's appointment of a special master to oversee the FBI's handling of the classified materials seized from Trump's Mar-a-Lago resort in the 2022 raid -- if not remove her from the case and reassign it to another district judge within the circuit's jurisdiction.

Smith trying to use Cannon's own words against her

A similar supposition came earlier this month from left-leaning Salon, which also cited liberal legal experts in predicting, if not openly advising, Special Counsel Smith to seek early appellate action from the 11th Circuit against rulings from Judge Cannon that are viewed as too favorable for former President Trump.

That article noted how Smith had attempted to force Cannon to rule against Trump's claim of selective and "unfair prosecution" by highlighting a prior case in which then-federal prosecutor Cannon had argued against similar claims made by drug dealers she was prosecuting.

Given that and the other alleged "missteps" by the judge, it has been suggested that Smith will take his complaints to the 11th Circuit and insist that Cannon be recused from the case, or at the very least be overturned on the particular orders with which the prosecutor has taken issue.

Cannon has ruled against Trump on occasion

Judge Cannon is undoubtedly well aware of what Special Counsel Smith may attempt to do if he continues to be disappointed in her handling of the classified documents case, which The New York Sun cited as a possible reason for a recent "rare loss" for former President Trump on a motion his attorneys filed.

In that instance, Cannon rejected a request from Trump to push back and further delay the pre-trial motion deadline of February 22, though she did leave open the possibility of allowing extra time for filing pre-trial motions if Trump's lawyers could provide "a particularized and timely showing that events post-dating February 22, 2024, clearly justify additional pre-trial briefing."

The Sun surmised that the order against Trump could have been an attempt by Cannon to placate Smith and forestall or completely avoid his potentially consequential appeals to the 11th Circuit that could result in her reversal or removal from the case.

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