The "aggressive" language used by special counsel Jack Smith this week shows that he has a difficult relationship with the judge in Donald Trump's classified documents case, a former prosecutor said.
Joyce Vance made her comments after Smith warned Judge Aileen Cannon in a court filing that he would appeal to a higher court if she didn't change the wording of her proposed instructions to the jury in the Trump case.
"It's unusual for federal prosecutors to be this aggressive with a judge, but they have no other choice here if they're going to protect their case," Vance wrote in her legal blog, Civil Discourse, on Friday. Vance has been a frequent critic of the former president.
In a response to Smith on Friday, Cannon wrote that his filing was ""unprecedented and unjust."
Vance said it was now "truly an incredible situation."
"When a prosecutor like Jack Smith drops the tone of deference toward the judge that federal prosecutors are schooled in using, you know it's deliberate," Vance wrote.
At one point in his filing, Smith wrote: "As the Government has previously explained," which Vance said was "not just a turn of phrase.'
"His message throughout the response is that time is up; he's out of patience. The judge has had everything she needs to make a decision [on the jury instruction] in front of her for weeks. Either the judge rules promptly and properly or the government is ready to go to a higher court."
Newsweek sought comment on Friday from the offices of Smith and Cannon.
In his filing, Smith warned Cannon that he may go to a higher court to get mandamus order, which is an order that would compel Cannon to do a specific task - in this case, change the wording of her jury instruction.
In a ruling on Thursday, Cannon refused to finalize her jury instructions, in which she proposed to tell the jury that Trump may have had the legal right under the Presidential Records Act to retain classified documents as personal items.
Smith has said that Trump had no legal right to retain the documents.
Cannon, a Trump appointee, is overseeing the case in which the former president 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. The former president has pleaded not guilty to the charges against him. He has denied any wrongdoing in the case and claimed that the documents he retained were personal.
Newsweek sought comment from Trump's attorney on Thursday.
In her ruling on Thursday, Cannon refused to dismiss the charges against Trump on his claim that he had designated the classified documents as personal items. However, in doing so, Cannon said she may make a full decision on the issue at a later date.
Smith warned in a filing on Tuesday that if a jury is sworn in and Cannon then rules that Trump should be acquitted because he had a legal right to retain the documents, then prosecutors would not be permitted to appeal. That's because of the federal double jeopardy rule, in which a defendant cannot be tried for the same crime twice.
"To the extent the special counsel demands an anticipatory finalization of jury instructions prior to trial, prior to a charge conference, and prior to the presentation of trial defenses and evidence, the court declines that demand as unprecedented and unjust," Cannon wrote in Thursday's ruling.
Uncommon Knowledge
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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
