Special counsel Jack Smith is considering seeking the removal of Judge Aileen Cannon from the case involving former President Donald Trump's alleged mishandling of classified documents, as tensions between the two parties reach a breaking point. Smith's office has sharply criticized Cannon's recent request for jury instruction proposals based on Trump's "fundamentally flawed" claim around a president's official and personal records, warning that her actions could taint the trial irrevocably.
In a scathing rebuke, Smith argued that Cannon's request seemed to take Trump's interpretation of the Presidential Records Act at face value, potentially distorting the trial. He indicated that if Cannon ruled against federal prosecutors, it could trigger an appeal to the Eleventh Circuit, which might result in her removal from the case.
"He is close to pushing the nuclear button," said Palm Beach County State Attorney David Aronberg. "It is a high burden to reach, and it is rarely done, but her proposed jury instructions may have pushed him to the breaking point."
Trump has defended Cannon in posts on his Truth Social platform, claiming that Smith should be "sanctioned or censured" for criticizing the judge's recent actions. However, Aronberg suggested that Cannon's response to Smith's criticism, including a court filing on Thursday explaining her proposed jury scenarios, has only stoked these tensions further.
"Cannon seems to be daring Smith," Aronberg said.
The judge called Smith's request for a prompt ruling on the legal premise behind her request "unjust" and appeared to challenge the special counsel, stating, "As always, any party remains free to avail itself of whatever appellate options it sees fit to invoke, as permitted by law."
The dispute centers on Trump's lawyers' claim that the Presidential Records Act gives the former president the authority to decide whether a record is personal or presidential, including documents with classification markings seized at his Mar-a-Lago estate. They argue that Trump's determination cannot be overruled by the courts. Smith's office has characterized this defense as "not based on any facts" and questioned Trump's claim that the documents were made personal while he was still president, citing a lack of evidence.
Smith's frustrations with Cannon extend beyond the jury instruction issue, as he has aired concerns about the judge's pace and the impact of her decisions on the case's timeline. Trump is fighting for more time to press his case in Florida, where Cannon's docket includes numerous legal decisions still to be made.
For Smith to move ahead with an appeal, Cannon must rule on whether the Presidential Records Act allowed Trump to retain classified records after leaving office, a charge central to the case against the former president. If Cannon delivers instructions to jurors based on a premise that federal prosecutors dispute, the government cannot appeal a jury's acquittal down the line, putting pressure on Smith to ensure that Cannon makes a definitive ruling.
"Smith's fear is that she will make a final decision on erroneous jury instructions after the trial begins, which will prevent Smith from appealing her decision because of Double Jeopardy rules," Aronberg explained.
Cannon's handling of the case has led to a furious public debate about her intentions and inexperience. Some of Smith's supporters have called for him to push for the judge's recusal, with retired federal judge Nancy Gertner stating, "It's clear that she is going in a ridiculous direction. The government could be without recourse after a trial begins. ... I don't even know why they indulged her. ... I think they need to stop playing games and move to disqualify her."
The tension between Smith and Cannon threatens to overshadow the grave felony counts against Trump, who faces dozens of charges related to hoarding military intelligence at his South Florida home and allegedly obstructing the government's efforts to reclaim those records.
