Prosecutor Jack Smith cannot stop Judge Aileen Cannon from suspending former President Donald Trump's classified documents case, a legal expert told Newsweek.
Cannon's ruling effectively spoiled Smith's effort to start the trial before the November election, a priority for Democrats and even some Republicans who say they would like to know the outcome of the cases against Trump before they vote. Smith still has the procedural option of filing a writ of mandamus to force a review of Cannon's decision, but that is likely doomed to fail, New York University legal professor Stephen Gillers told Newsweek.
He said Smith "has no plausible options at the moment," adding it was highly unlikely the prosecutor would win a mandamus appeal, in which a higher court compels a lower court to reverse an order it made.
"There is no right to appeal from her decision. Mandamus is a way to get appellate review in extreme cases where appeal is not possible but the trial judge's decision is clearly wrong," he said.
"The scope of review by the circuit [court] on mandamus is very narrow. Mandamus would be a big gamble here and almost certainly lose."
Cannon is overseeing the case in which Trump is accused of illegally retaining classified documents, hoarding them at his Mar-a-Lago resort in Florida and obstructing attempts by federal officials to retrieve them.
Trump, the presumptive Republican presidential nominee, has pleaded not guilty to the charges. He has denied any wrongdoing in the case and has said the documents he retained were personal.
Cannon, a Trump appointee, indefinitely postponed the trial on Tuesday, citing legal disputes around classified evidence. Cannon said there were eight outstanding substantive pending motions for her to rule on and predicted this will take until at least late July.
It is unknown whether the case will begin before the November 2024 presidential election.
If elected, Trump has a number of options to kill the trial, including pardoning himself or appointing a favorable attorney general to drop the charges.
Newsweek sought email comment from Trump's attorney and Cannon's office on Wednesday.
Anthony V. Alfieri, a law professor at the University of Miami, told Newsweek that the decision to delay the trial indefinitely could be a reason for Smith to ask a higher court to remove her from the case.
He said Cannon's delay "highlights continuing case management problems in her chambers and amplifies calls for her recusal."
"The recurrence of these seemingly insurmountable problems saps public confidence and trust in the judicial system," he said.
John J. Perlstein, a Los Angeles-based litigation attorney, said that there were significant issues in handling the classified documents at the center of the indictment and therefore the case needed considerable time.
He said the delay is "not surprising because the judge is a Trump appointee and in addition there are some significant legal issues involving the classified documents that will need hearings thus the case will take time."
Update 5/9/24, 9:10 a.m. ET: This article was updated to include additional information about the significance of Cannon's decision to indefinitely suspend the case.
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Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
About the writer
Sean O'Driscoll is a Newsweek Senior Crime and Courts Reporter based in Ireland. His focus is reporting on U.S. law. ... Read more
