Jack Smith Throws Down the Gauntlet To Judge “Loose” Cannon

Special Prosecutor Jack Smith did more than fire a warning shot across judge Aileen Cannon’s bow. He “bracketed” her, surrounded her with fire. Cannon recently issued another strange order, requesting input from both the prosecution and defense on a jury instruction (even though we don’t even seem close to having a trial date set) that digs into the question of considering the Presidential Records Act (PRA) during the part of a trial when judges instruct juries on the law just prior to them beginning deliberations. In barely polite (one could argue he was actually quite pointed) Smith told Cannon she was way off base. Wrong on the law. And that if she didn’t drop this he was going to appeal!

That’s the gist of this article I found in Huffington Post. Smith, who has to be frustrated as hell over Cannon’s fawning treatment of Trump has tried to play nice. To not go pissing off the judge. Hell, any lawyer with common sense would want to avoid poking the judge with a stick. A good, seasoned and fair judge will take it in stride as long as it doesn’t go too far but judges are human beings. Not all of them will actually take it in stride and if they take things personally there are all kinds of ways they can make life difficult for the lawyer(s) involved. It’s safe to say federal District Court judge Aileen Cannon is two things: First she’s not a seasoned, competent jurist and in fact is way the hell out of her league with a case of this magnitude. Second, she does take things personally because she’s totally in the tank for Donald Trump. At times she’s acted as one of his defense team instead of as the judge!

Regardless, the fact is that like any other judge (state or federal) Cannon wields enormous power. Via their rulings a judge can “shape” a case and if they choose steer it towards an outcome they desire. Some are subtle but subtle isn’t part of Cannon’s playbook. Everyone can see that. Trump of course loves it. A day doesn’t go by where he doesn’t rail against some judge somewhere. Yet even when there’s been a ruling that on the surface at least doesn’t TOTALLY favor him, or even (grudgingly) slightly favors the prosecution Trump is silent when it comes to Cannon! That should tell you all you need to know. Think about that for a minute.

Part of Smith’s problem is that much as we’d love to see him file something with the 11th Circuit Court of Appeals he needs a really, really good reason to do so.  This I remind you is an appeals court that not once but TWICE slapped Cannon down and hard over Trump favorable rulings back before there was even an indictment. Team Trump did some judge shopping and got her to try and kill his impending Florida National Security case (willful retention of classified information/documents) and Cannon was happy to indulge him.  She knows it wouldn’t be good to have the 11th Circuit weigh in yet again because the consequences could go beyond just getting a ruling slapped down again. So despite dancing along the edge of the razor blade she’s managed to avoid handing Smith the loaded gun of a stupid ruling he can take to the 11th Circuit.

Until now. I remain convinced The Federalist Society has someone, if not a team down there in Florida “advising” her, to keep her coloring inside the lines. Legal pundits I respect seem to think here and there she might have provided grounds for Smith to file an interlocutory appeal but even they admit it’s been a judgement call. Now however, Cannon is venturing into true WTF? territory that crosses a clear line.  It’s highly questionable but not unheard of (rare, but not unheard of) to be dealing with potential jury instructions at this stage. However, doing so when the proposed instruction is so clearly wrong on multiple points of law is just plain crazy on Cannon’s part.

As the linked article states Smith’s response is quite forceful, using terms like “fundamentally flawed” to describe Cannon’s order.

Cannon’s order appeared to give credence to Trump’s claim that he had broad authority to take anything he wanted after his presidency ended under the auspices of the Presidential Records Act. Smith rejected the judge’s assertions in the filing, and said it was “pure fiction to suggest that highly classified documents” were Trump’s private property under the act.

“That legal premise is wrong, and a jury instruction … that reflects that premise would distort the trial,” Smith’s team wrote. “The [Presidential Records Act]’s distinction between personal and presidential records has no bearing on whether a former President’s possessions of documents containing national defense information is authorized under the Espionage Act, and the PRA should play no role in the jury instructions.”

Jack Smith is pretty much calling her out. In his response he doesn’t just dismantle her on the law but pretty much says keep this up and I’m off to the 11th Circuit. The linked article contains a couple of long tweets that include parts of Smith’s filing along with his own (Cheney’s) commentary. In the interest of keeping this (relatively) short I won’t include them but it’s worth the time to check them out.  Even a layperson can read the portions of the filing and readily understand that Smith is pretty much telling Cannon she doesn’t know jack about the law and is an idiot for entertaining this Trumpian nonsense.

Does Cannon really want to get slapped down by the 11th Circuit again? Smith it seems is DARING her to force the issue. I could be wrong (it sure as hell wouldn’t be the first time) but it seems like he’s baiting her. A test of wills and he’s doing it because he believes she’ll take the bait. That she is so “gone” that she’ll go thinking Smith will be the one to get slapped down. And maybe give her an excuse to dismiss the case?  Well, if Cannon doesn’t come to her senses she might find SHE is the one who winds up being dismissed.

The way I see it Smith has chosen to engage in a test of wills, and with the actual law on his side has all the weapons. Cannon’s only defense is she loves her some Trump and is looking for some type of largesse, a “bigly” reward from him down the road. Smith it seems is done playing, telling judge Cannon keep this up and I’m going over your head:

“If the Court wrongly concludes that it does, and that it intends to include the PRA in the jury instructions,” Smith wrote, “The Government must have the opportunity to consider appellate review.”

He went on to say that Trump’s attempt to leverage the Presidential Records Act in the case was “not based on any facts” and had only been “concocted more than a year after he left the White House.”

“He has attempted to fashion out of whole cloth a legal presumption that would operate untethered to any facts,” Smith wrote. “There is no basis in law or fact for that legal presumption, and the Court should reject Trump’s effort to invent one as a vehicle to inject the PRA into this case.”

If she has an ounce of common sense that first part will make Cannon’s blood run cold. However, when it comes to Trump any common sense she has seems to be buried under a ton of Trump worship. Could it be that Cannon will have hurt fee fees and decide to try and put Smith in his place? Again, I think that’s exactly what Smith is up to. Goading her to force the issue, and hand him a golden opportunity to involve the same appellate judges who are already embarrassed by their fellow GOPer to cut her off at the knees. I’m reminded of a funny moment (there were so many) from Robin Hood, Men in Tights where Robin teaches “Rottingham” a painful lesson:

Cannon has challenged Smith. Smith has just accepted and with the language in his filing with the force of that metal armored glove. Now we must wait and see if Cannon has the good sense to back down, or responds like Rottingham and suffers an embarrassing loss when the battle is joined.