Jack Smith Could Be Headed for 'Awkward' Situation in Trump Case

Special Counsel Jack Smith could end up in an "awkward" situation in former President Donald Trump's classified documents case, following a recent response to Judge Aileen Cannon.

On Wednesday, attorney and legal commentator Elie Honig, appeared on CNN News Central to discuss a recent filing by Smith in response to an order by Cannon proposing jury instructions on Trump's arguments in the classified documents case.

When asked if Smith could seek to have Cannon removed from the case, Honig said it would be "possible," but noted "it's extraordinarily rare."

"There is a procedure for this, and it can happen sometimes, where prosecutors will ask the judge or will ask an appeals court to remove a federal judge from a case," Honig said. "First of all, it's a pretty precipitous move; second of all, if you lose, you have a kind of awkward scenario where you've asked the judge to be kicked off."

Newsweek reached out to the Department of Justice via its website for comment.

The Context

Last month, Judge Cannon, who is overseeing Trump's classified documents case in Florida, filed an order asking both the prosecution and defense to provide possible instructions for the jury relating to the charges against the former president.

The proposed instructions appear to suggest to the jury that they are permitted to consider the classified documents to be Trump's personal items, under the Presidential Records Act.

However, Smith issued a strong rebuke to Cannon's proposed request, stating they "rest on an unstated and fundamentally flawed legal premise."

"Both scenarios rest on an unstated and fundamentally flawed legal premise—namely, that the Presidential Records Act and in particular its distinction between 'personal' and 'Presidential' records, determines whether a former President is 'authorized,' under the Espionage Act, to possess highly classified documents and store them in an unsecure facility," Smith's office wrote in response.

What We Know

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.

The former president has pleaded not guilty to the charges against him. He has denied any wrongdoing in the case and has claimed that the documents he retained were personal.

In their response to Cannon's ruling, Trump's lawyers said: "If this case is presented to a jury—which it should not be—the jury would be forced to resolve factual issues relating to not only PRA categorizations but also documents' alleged classification status."

Newsweek reached out to Trump's spokesperson via email for comment.

Views

On CNN's News Central, Honig said that the removal of a judge on a federal case "is supposed to be reserved for cases where the judge has made repeated errors that evince some sort of bias."

"Now, Judge Cannon did rule in favor of Donald Trump before this case was indicted, remember the special master issue, and she got reversed by the court of appeals there, and so, it's possible, I think it's unlikely but possible, that if the judge rules against DOJ here, they may take that sort of extreme step of asking her to step aside," Honig said.

What's Next

Honig said that Smith's order notified the judge that if the court plans to instruct the jury on the Presidential Records Act, he will likely appeal.

"Once a case goes to a jury, even if the jury gets legally flawed instructions, when the jury comes back, if they come back with an acquittal, with a not guilty verdict, there's nothing a prosecutor can do. A prosecutor cannot appeal a not guilty verdict," Honig said. "So, what Jack Smith is saying here is 'we're worried that you may make a mistake here that may lead to a not guilty verdict and then there'll be nothing we can do.'"

Update, 4/3/24, 7:54 a.m. ET: This story has been updated with further information.

Update, 4/3/24, 8:17 a.m. ET: This story has been updated with further information.