Department of Justice (DOJ) Special Counsel Jack Smith is close to pushing the "nuclear button" in Donald Trump's classified documents case, a legal expert told Newsweek on Wednesday.
Judge Aileen Cannon, who was appointed by Trump, has faced scrutiny over her handling of the case in which federal prosecutors charged the former president with 31 counts for allegedly keeping classified documents at his Mar-a-Lago residence in Florida. Trump has pleaded not guilty to all charges and maintains his innocence, accusing the DOJ of targeting him for political purposes. Critics have called for Cannon to be removed from the case.
Smith wrote that Cannon's proposed jury instructions "rest on an unstated and fundamentally flawed legal premise" in a new court filing this week.
The filing was in response to Cannon's instructions suggesting that Trump may have had a legal right under the Presidential Records Act (PRA) to declare presidential records as personal property after leaving office.
Dave Aronberg, the state attorney in Florida's Palm Beach County, told Newsweek on Wednesday that Smith's response was the "most aggressive" from him to date.
Aronberg added that Smith has "good reason" for his reaction because of Cannon's "erroneous interpretation of the Presidential Records Act that would be a pipe dream for the former president."
"If her jury instructions are adopted, it would mean the end of this case," he said. "Jack Smith is close to pushing the nuclear button to ask the 11th Circuit to intervene and remove Judge Cannon from the case."
Attorney and legal expert Andrew Weissmann predicted in a post to X, formerly Twitter, that the U.S. Court of Appeals for the 11th Circuit could reverse her instructions and potentially remove her from the case over the issue.
"I think it will remove her from the case- 3 reversals is more than enough for this inexperienced judge, who gets the law wrong and always in Trump's favor," he posted.
Former federal prosecutor Neama Rahmani told Newsweek that while Cannon has been "consistently wrong on law," it is unlikely this will lead to her removal.
"Being reversed on appeal isn't enough, even if she is reversed multiple times," he wrote. "Smith would have to prove Cannon is partial and reassignment is necessary. Hopefully the embarrassment of multiple reversals is enough for Cannon to stop entertaining everyone of Trump's arguments, no matter how frivolous."
Former federal prosecutor Barbara McQuade told Newsweek that the record does not support the removal of Cannon, as doing so would require her impartiality to be "reasonably" questioned, not just reversible error.
"Though her orders regarding the Presidential Records Act appear to be profoundly wrong, they may be a function of inexperience or incompetence rather than bias. I think we would need to see more evidence of bias before a court would be willing to reassign the case to another judge," she said.
Shanlon Wu, also a former federal prosecutor, told Newsweek that if the appeals court reverses her decision and issues a writ of mandamus, it could be possible for Cannon to be removed.
"A new judge would still cause delay - something the special counsel is no doubt aware of - but the danger of the potential ruling on this matter poses makes that risk worth it," he said.
Newsweek reached out to the U.S. District Court for the Southern District of Florida for comment via email.
A spokesperson for the DOJ declined comment when reached by Newsweek.
In his filing, Smith wrote that if Cannon allows the jury to decide that Trump had a right to hold presidential records as personal items, she should allow prosecutors time to appeal her decision to a higher court.
But Trump's attorneys sided with Cannon's wording, writing: "The jury would be forced to resolve factual issues relating to not only PRA categorizations but also documents' alleged classification status."
Trump has argued that he would have been allowed to possess the classified records under the Presidential Records Act, though some legal experts have cast doubt on that claim.
Update 4/5/2024 11:35 a.m. ET: This article was updated with additional information.
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Andrew Stanton is a Newsweek weekend reporter based in Maine. His role is reporting on U.S. politics and social issues. ... Read more
