Jack Smith Just Blew Up Cannon’s Double Jeopardy Ploy, She’s Next

There is so much attention going these days to the classified documents at Mar-a-Lago case that you almost need a scorecard to sort through it all. And we shall endeavor to provide you with just that. To begin with, Donald Trump is ready to pop a vessel over how the case is going. How do we know? Because he’s in all-caps screaming mode on Truth Social, yet again. With all the problems he’s having with his $175M bond and the hush money case on the horizon, for him to forget about those two pans on the front burner and be thinking about Jack Smith first thing when he opens his eyes tells you everything you need to know.

That was at 4:55 a.m., which I suspect is Pacific Time, but it’s still early in Florida, three hours later. Here’s Los Angeles Times columnist Harry Litman’s assessment of how Jack Smith has essentially put Aileen Cannon in check (writ of mandamus) and checkmate (motion to recuse) could be next. Clearly, that is the last thing that Trump wants is for his lap dog judge to be either compelled to modify her behavior or, God forbid, to be removed from the case altogether.

Late Monday, the special counsel responded to U.S. District Judge Aileen Cannon’s bizarre recent order in the classified records case against Donald Trump, which asked the parties to propose jury instructions based on flagrantly wrong legal premises. Smith’s answer, in effect, was “I’m not playing.”

Rather than take on Cannon’s cockamamie assignment, Smith laid out accurate jury instructions based on the actual charges and law.

Cannon had ordered the parties to “engage with” the Trump team’s recurrent misinterpretation of the Presidential Records Act, which has no legal bearing on the case. Her order also depended on an account of the facts — namely, that Trump may have magically converted all the classified government records at issue into his personal property as he left the White House — that has always been beyond incredible.

In effect, Cannon was ordering the Justice Department to assume that the world is flat and then map a route from Atlantis to Arcadia.

That says it all. That line, right there, captures the absurdity of how Cannon has handled this case from square one. She is truly one or two steps removed from being a Fox News commentator with this level of drivel wrapped up and disguised as jurisprudence. Jonathan Turley, you’ve been outdone, if that’s even humanly conceivable.

As I explained when the judge entered the order, her “Alice in Wonderland” antics seemed designed to avoid issuing a ruling that prosecutors could appeal while also setting the stage for her to adopt Trump’s ridiculous claims after a jury has been impaneled.

That could be a fatal blow to Smith’s case. Once a jury is selected, even a ridiculous order can bring a prosecution to a hard stop because the Constitution’s double jeopardy clause precludes retrial. It would be the judicial equivalent of a perfect crime.

And that is how Cannon was playing it. Evidently she thought she could get it past Jack Smith and he’s made it crystal clear that that’s not going to happen.

The special counsel’s latest filing suggests the end of the game may be near. The government’s 24-page answer states flatly that the judge’s “legal premise is wrong, and a jury instruction … that reflects that premise would distort the trial.” Under the usual rules of discourse between judge and litigants (and especially federal prosecutors), that’s pretty cheeky.

But it was just the beginning of Smith’s pushback. The special counsel proceeded to instruct the judge — again contrary to normal etiquette — that it is “vitally important” that the court make a decision about Trump’s Presidential Records Act arguments. In other words, Cannon’s precious thought experiment was not only wrongheaded; it was a dereliction of the court’s basic responsibility to rule on the parties’ motions.

The Justice Department is turning the tables on Cannon by telling her to just decide the matter already. Smith’s team also put the need for a speedy trial in particularly clear terms: “Whatever the court decides, it must resolve these crucial threshold legal questions promptly. Failure to do so would improperly jeopardize the Government’s right to a fair trial.”

The prosecution further called out Cannon’s threat to issue a consequential ruling after a jury is impaneled, writing, “The Government must have the opportunity to consider appellate review well before jeopardy attaches.”

The Smith team then made its most important and aggressive move by noting that when judges have issued clearly erroneous jury instructions that doom prosecutions, “courts have permitted the government to obtain writs of mandamus.”

There it is, right there in black and white. A writ of mandamus orders a government official, in this case a judge, to properly fulfill their official duties or correct an abuse of discretion. It is the FO portion of FAFO in legal world. The special counsel is making it clear that he will bring a writ of mandamus to the 11th Circuit along with a motion to recuse her from the case, if she doesn’t get her act together and resolve Trump’s frivolous arguments well in advance of the trial.

Jack Smith is done playing with Aileen Cannon but Trump is not done playing with Jack Smith. That’s another entry on your scorecard you’ll need to make to keep all this straight. Trump’s lawyers have cobbled together another masterpiece of misapprehension of the law, in their attempts to get rid of the special counsel.

“Demonstrably incorrect” is just one way a group of constitutional lawyers and elected and federal officials — including a slew of former U.S. attorneys general — described Donald Trump‘s interpretation of the law as the former president pushes to have his Espionage Act indictment in Florida dismissed on grounds that special counsel Jack Smith was unlawfully appointed.

Nineteen experts signed onto the brief including former federal prosecutors like Donald Ayer, who served under George H.W Bush and Ronald Reagan; Stuart Gerson, a former acting attorney general; and Philip Allen Lacovara, former counsel to the special prosecutor during Watergate and drafter of the brief for the government in U.S. v. Nixon. Other government officials like former New Jersey governor Christine Todd Whitman and former U.S. Secretary of the Army Louis Caldera signed on as well as former U.S. Representative for Missouri and onetime Assistant Attorney General Tom Coleman. The full list of signatories along with the brief is available here.

In February, Trump’s lawyers filed a motion to dismiss the indictment due to what they argued was Smith’s “unlawful appointment and funding.” Smith was appointed as special counsel in November 2022 but should not have been, according to Trump, because the Constitution’s Appointments Clause and Appropriations Clause forbade the assignment of a “private citizen and like-minded political ally to wield the prosecutorial power of the United States.” Special counsel, Trump also contends, can only be approved with confirmation by the Senate.

As Law&Crime previously reported, that argument — which itself was supported by a pro-Trump amicus brief — was laid out by former Attorney General and co-founder of the conservative Federalist Society Edwin Meese III over a month ago and Smith had responded to it in kind in February.

“Neither Trump’s challenge nor the Meese Amicus’s additional theories are novel or meritorious; to the contrary, every court that has considered them has rejected them — including authoritative decisions by the Supreme Court,” Smith wrote in February. “And resolving the validity of the Special Counsel’s appointment would not lead to an accelerated appellate proceeding if Trump’s claim failed. Unlike with a non-frivolous immunity claim, Trump would have no right to an interlocutory appeal should the Court deny his Appointments Clause challenge.”

Diddling with novel interpretations of the Appointments Clause is a total waste of time beyond providing Fox News, Newsmax and the rest with fodder to bolster a Deep State conspiracy theory of how blameless Trump is being persecuted.

And finally, the latest development in the classified documents case has Aileen Cannon ruling that she will not dismiss the case based upon Trump’s notions of the Presidential Records Act but she takes umbrage at Jack Smith asking her to rule on the jury instructions.

We’re not out of the woods yet. A writ of mandamus may be coming down the pike because Cannon keeps insisting that the world is flat and demanding that a route from Atlantis to Arcadia be mapped. Sigh.

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