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It’s Time for Jack Smith to Seek Judge Cannon’s Removal from the Classified Documents Case

THERE’S MORE THAN MEETS THE EYE to Judge Aileen Cannon’s seemingly innocuous decision on Thursday to deny, without prejudice, Donald Trump’s motion to dismiss Special Counsel Jack Smith’s Florida case against Trump for mishandling classified government documents.

From ten thousand feet, Judge Cannon’s decision might not look entirely crazy. True, denying the motion “without prejudice”—legalese for Trump being permitted to submit the exact same motion over again if he wants—means that she decided nothing at all. Maybe a semi-rational argument could be made that it would make sense to decide the motion after the factual record is more fully developed, but even that gives Cannon more benefit of the doubt than she deserves.

Trump’s argument, in a nutshell, was that the criminal statute under which the case was brought is unconstitutionally vague. The statute in question, the Espionage Act of 1917, has been enforced in criminal proceedings for over a hundred years. Just last week, Jack Douglas Teixeira, a member of the Air National Guard, agreed to plead guilty to retaining and transmitting classified information under the same provision of the Espionage Act that Trump is charged with violating.

I’ll leave the dispositive rebuttal of Trump’s “vagueness” argument to Smith—and to your common sense. Suffice it to say that any competent, well-informed judge would have denied Trump’s motion summarily, probably without even holding a hearing.

But put that aside—Aileen Cannon sure doesn’t look like a competent, well-informed judge. She seems to be either in over her head, or a partisan MAGA apparatchik, or both.

When the view of Judge Cannon’s decision on Thursday descends from ten thousand feet all the way down to looking at the actual words in her two-page decision, what we see is incomprehensible.

Wrap your head around this sentence:

For that reason, rather than prematurely decide now whether application of 18 U.S.C. § 793(e) [the Espionage Act] in these circumstances yields unsalvageable vagueness despite the asserted judicial glosses, the Court elects to deny the Motion without prejudice, to be raised as appropriate in connection with jury-instruction briefing and/or other appropriate motions.


What are “asserted judicial glosses”? By this, Judge Cannon apparently means the century of judicial precedent—case law—the universally accepted authority for deciding subsequent cases involving similar facts or legal issues, or at least as the starting point of a judicial analysis. Why would Judge Cannon use a pejorative euphemism to describe the judicial process itself? Your guess is as good as mine, but to me it indicates a mindset that is at least indifferent and possibly even hostile to the law. That she will be inclined to disregard precedent. That she will make a result-oriented decision, and we all know what result she is likely to favor.

And this:

Although the Motion raises various arguments warranting serious consideration, the Court ultimately determines, following lengthy oral argument, that resolution of the overall question presented depends too greatly on contested instructional questions about still-fluctuating definitions of statutory terms/phrases as charged, along with at least some disputed factual issues as raised in the Motion.

What arguments presented by Trump’s lawyers warrant “serious consideration”? Is an inexperienced, partisan, barely qualified judge really going to throw out a hundred years of Espionage Act jurisprudence because Donald Trump doesn’t like the wording of the statute? And what is Judge Cannon talking about when she refers to “contested instructional questions” and “still-fluctuating definitions”? What do those words even mean? Nobody has submitted any proposed jury instructions in this case, and the language of the relevant section of the Espionage Act was written in 1917 and last amended in 1950.

Judge Cannon’s decision is incoherent. Maybe she’s just a bad writer. Or maybe this decision, taken together with earlier pro-Trump rulings that were so lawless that they were swiftly and emphatically reversed on appeal, is yet another harbinger of bad things to come.

I’ll take the over.

If Judge Cannon can’t—or won’t—categorically deny this frivolous motion to dismiss the claims against Trump, what is she going to do with other motions that are still pending in the case, and the avalanche of future motions sure to come?

Cannon has yet to decide Trump’s motion to dismiss the indictment on the preposterous ground that a civil statute that has nothing to do with the charges against him, the Presidential Records Act, made it okay for him to steal classified documents from the White House, stick them in bathrooms, closets, and other unclassified locations at his Mar-a-Lago resort to which an unknown (but large) number of people from all over the world had access, lie to the FBI about having returned them when he knew he hadn’t, and instruct his employees to hide them from not only the FBI but also his own lawyers—or something like that.

And Cannon also hasn’t yet ruled on Trump’s motions to dismiss the case on the ground that he supposedly has “total” presidential immunity (even though most of Smith’s case against him involves conduct after Trump left office) and that Smith lacks legal authority to prosecute him.

Federal judges control everything that takes place in their courtrooms, from motions to dismiss to evidentiary rulings to jury instructions. They can influence jurors through nothing more than body language and the roll of an eye. There are a hundred ways a federal judge can sabotage a case. In this case, the judge could easily pull enough levers to delay Trump’s trial until after the 2024 presidential election, at which time he will be able to kill it himself if he is elected. And even if Trump loses the election, there’s absolutely no reason to believe that Judge Cannon won’t find more levers to pull to deliver a coup de grâce.

It’s time for Jack Smith and his team of prosecutors to read the writing on the wall: Judge Cannon is going to kill your case.

Smith should move now to get Judge Cannon thrown off the case. Whatever the risk, it has to be taken, and fast. Otherwise, Smith might as well fold his hand now.

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