Special Counsel Jack Smith Attacks Judge in Trump Documents Case in New Filing

Special Counsel Jack Smith attacked Judge Aileen Cannon in a filing submitted late Tuesday in the Justice Department’s case against former President Donald Trump alleging that he mishandled classified material after leaving office.

Smith’s team accused Cannon of a “fundamentally flawed” understanding of the case, after she requested draft language from both sides on potential jury instructions that they argue embrace Trump’s claims that he had broad authority to take classified government documents. Smith’s team also threatened to seek an appeal court review.

Cannon asked each side for instructions for two scenarios: One in which they would tell jurors to assess whether the records fell into the categories of “personal” or “presidential,” and another that assumes Trump had complete authority to take records he wanted from the White House.

“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 team wrote in the filing.

Trump’s defense team argues that the former president had broad authority to characterize any record from his time as president as personal and that the case should be dismissed. Smith’s team called that argument “pure fiction.”

Smith’s team said the court should issue a ruling on whether the Presidential Records Act and the distinction between personal and presidential records applies to the case, so that if it concludes it is indeed applicable, they can appeal that decision before the case goes to trial and Trump could potentially be acquitted.

Smith’s attack on the Trump-appointed Cannon comes as Trump’s critics have slammed him for attacking Justice Arthur Engoron and Judge Juan Merchan in two other cases against him.

Judge Arthur Engoron poses for a picture in his courtroom in New York, Thursday, Sept. 28, 2023. Starting Monday, Oct. 2, Engoron will preside over a non-jury trial in Manhattan to resolve remaining claims in New York Attorney General Letitia James’ lawsuit against former President Donald Trump, his company and top executives. (AP Photo/Seth Wenig)

Judge Juan Merchan poses for a picture in his chambers in New York, Thursday, March 14, 2024. Merchan could become the first judge ever to oversee a former U.S. president’s criminal trial. He’s presiding over Donald Trump’s hush money case in New York. (AP Photo/Seth Wenig)

Columnist Julie Kelly posted on X that Smith’s filing made it “clear that the gloves are off btw DOJ and Judge Cannon.”

“One defense attorney just told me: ‘The tone Smith is taking with Cannon is no longer persuasion but outright threats. Unheard of dynamic btw DOJ and the bench,'” she added, calling Smith’s response “hysterical.”

Mike Davis, founder of the legal advocacy group Article III Project, commented on the double-standard of Democrats being outraged over Trump’s attacks on judges versus Democrats’ attacks on Cannon.

“When Trump raises evidence of a judge’s political bias, Democrats pretend that’s a ‘violent threat.’ But when these Democrats hysterically attack another judge for ensuring Trump gets a fair trial, they don’t say a word after the resulting death threats,” he posted.

Trump faces more than 40 charges stemming from the documents case.

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