Jack Smith should move fast to have Aileen Cannon removed as the judge in Donald Trump's classified documents case, a law professor has said.
Stephen Gillers, a New York University law professor, told Newsweek that Smith should go to a higher court, no matter how angry that makes Cannon.
"Smith's relationship with Cannon can hardly get worse," Gillers said.
He said Smith should appeal Cannon even if she takes it "personally or views it as hostile."
"The worst that can happen is that he will have to try the case before an already angry trial judge. In other words, if there's a legal hook on which Smith can credibly hang a request for appellate review, he should invoke it," he said.
"He can't wait long because Cannon is continuing to work on the case in the interim. He can't wait a month while she invests more court time. I say he has another five days."
Trump, the presumed 2024 GOP presidential nominee, is facing numerous charges in the case, stemming from allegations that he unlawfully retained classified documents at his Mar-a-Lago residence in Florida after leaving the White House. Some of these documents contained sensitive national security information, and by retaining them, prosecutors have argued that he violated the Espionage Act. Trump has claimed innocence in the case and pleaded not guilty to the charges.
Cannon was appointed to the bench by Trump during the final weeks of his presidency in 2020 and was chosen last year to oversee the documents case.
In a recent filing in Cannon's court, Smith criticized her proposed jury instructions, which would allow the jury to agree that Trump had the right to retain presidential records as personal belongings.
In a response, Cannon wrote that Smith's criticism was "unprecedented" and premature.
Legal commentator and frequent Trump critic Joyce Vance wrote in her blog, Civil Discourse, on Monday that Smith was unlikely to succeed in getting a mandamus order against Cannon. A mandamus order is an order from a higher court compelling a lower court to carry out an action—in this case, compelling Cannon to recuse herself from the Trump case.
Gillers said he disagreed with Vance and that seeking a mandamus order was an option for Smith.
"I disagree with Vance that mandamus is unavailable. Even discretionary acts by judges are subject to mandamus for abuse of discretion," he said.
He said the circuit appeal court "sees what's happening and can and should step in."
To do so, Smith should be "emphasizing the importance of public confidence" rather than criticizing Cannon in his mandamus application.
"Cannon may be intentionally obstructionist. It pains me to say so. Certainly, her conduct permits that inference. She may be working to avoid a trial before Election Day. If Trump wins, none of this will matter because he can end the prosecution as president," Gillers said.
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
