Jack Smith Caught in a Bind as Aileen Cannon Recusal Calls Grow

Special Counsel Jack Smith may be running out of time if he intends to request Judge Aileen Cannon be removed from Donald Trump's classified documents trial.

While the federal prosecutor has given no indications that he intends to officially ask the U.S. Court of Appeals for the 11th Circuit to remove Cannon from the federal case, there have been frequent calls for Smith to do so as the judge who was nominated to the bench by Trump has made multiple decisions in favor of the former president.

These calls were reignited after former Mar-a-Lago worker Brian Butler, a potential star witness in the case where Trump has pleaded not guilty to 40 charges, publicly came forward to describe how he unwittingly assisted co-defendant Walt Nauta to move boxes of classified materials onto Trump's private plane in June 2022.

Speaking to CNN, Butler said he chose to publicly come forward after Cannon ruled to make the identities of potential witnesses in the classified documents trial public—a decision Smith previously said was a "clear error" that could result in "manifest injustice" and the witnesses becoming the subject of harassment and intimidation.

"Instead of just waiting for it to just come out, I think it's better that I get to at least say what happened than it coming out in the news [and] people calling me crazy," Butler told CNN. "I'd rather just get it out there, and the hope is, at least I can move on with my life and get over this."

In the wake of Butler's CNN appearance, veteran Democratic political scientist Norman Ornstein posted on X, formerly Twitter: "It is hard to imagine a more corrupt judge than Aileen Cannon. It is past time for Jack Smith to petition for her removal."

Joyce Vance, a former federal prosecutor and legal analyst, described one of the government's witnesses in the classified documents case coming forward as Cannon ruling meant he was going to be identified anyway as "disturbing."

However, the crucial timing of the federal election trial may mean that Smith does not attempt to formally remove Cannon from the case to prevent delay.

The case is currently scheduled for May 20, but Cannon is widely expected to push back the start of the federal proceedings.

Lawyers for Trump previously suggested to Cannon that the trial should not begin until 2025 due to the Republicans' presidential campaign schedule, but they also gave a potential start date for the trial of August 12, as demanded by a court order.

If Trump beats President Joe Biden in November before the classified documents trial takes place, Trump could then order the Department of Justice to drop the federal case into him once he enters office.

Smith's office has suggested that the classified documents be rearranged for July, meaning a potential jury decision would arrive months before November's election.

Barbara McQuade, a former U.S. attorney for the Eastern District of Michigan, said she would be "very surprised" if Smith moved to recuse Cannon as he does not have a strong enough case to do so.

"Although some may perceive her decisions as favoring Donald Trump, judges often accommodate defendants out of an abundance of caution to ensure due process and a fair trial, and to avoid reversal on appeal," McQuade told Newsweek.

"While reasonable minds can disagree about some of her decisions, nothing she has done could be framed as an abuse of her discretion. I do not think a motion to recuse her would be successful, and then Smith would risk being even worse off than he is now in the eyes of Judge Cannon."

A spokesperson for Smith's office declined to comment when contacted by Newsweek.

Writing for MSNBC in February, Jordan Rubin, a former prosecutor for the New York County District Attorney's Office in Manhattan, suggested that the potential for delay and the hurdles in trying to remove Cannon from the federal case may make it unlikely for the government to try and do so.

"Ultimately, whether she stays on is likely in her own hands: It's not just a question of whether she makes incorrect rulings, but also whether she demonstrates an obvious bias," Rubin wrote. "Just being a bad judge isn't enough.

"And for anyone hoping for a different judge due to concerns over Cannon further delaying the case, assigning a new one could just add more delay. But if Trump loses the election and prosecutors are no longer racing that clock, then a more experienced judge could help ensure not only that the case moves toward trial efficiently but that the trial itself is handled properly, given the vast discretion afforded trial judges.

"Yet it's that discretion—and the high bar for recusal and reassignment—that may keep Cannon on the case," Rubin added.