Documents case: Smith challenges Cannon

“Jack Smith has had enough,” said Harry Litman in the Los Angeles Times. In response to a “bizarre” recent delaying tactic by federal Judge Aileen Cannon, the special counsel pushed back hard last week in a blistering legal filing that raised the possibility that he will ask that the Trump appointee be removed from the case for bias. The irate Smith objected to Cannon’s recent order indicating that she may allow Trump to argue that his theft of classified intelligence-agency documents was protected by the Presidential Records Act. The judge’s “legal premise is wrong,” Smith wrote: Trump has been charged with violating the Espionage Act and with obstruction, while the PRA is limited to purely “personal” records. Smith requested that Cannon “promptly” reveal whether she would allow Trump’s bogus defense at the trial, so that the government could file an appeal with the 11th U.S. Circuit Court of Appeals—and seek to have her removed.

Cannon is playing a very cagey game, said Jose Pagliery in The Daily Beast. In response to Smith’s challenge, she “refused to take the bait.” Rather than opening the door to an appeal, she again kicked the can down the road—saying Smith’s demand for a decision on Trump’s personal-record claim was “unprecedented and unjust.” If she waits to rule on Trump’s defense until after the trial begins, it will likely be too late for the prosecution to appeal. If a Florida jury buys Trump’s defense, prosecutors can’t appeal, either. Cannon keeps feeding the “narrative that she’s in Trump’s pocket” with favorable rulings, said University of Texas law professor Lee Kovarsky in New York magazine. Trump further raises suspicion by lavishly praising her. Is he “dangling a promotion” over her head? Cannon is “very smart and very strong, and loves our country,” Trump has said.

Smith’s case against Trump “appears to be quite strong,” said Andrew C. McCarthy in National Review. The indictment lays out “real crimes,” including Trump’s efforts to hide the intelligenceagency documents from the FBI. Still, Smith is taking a huge risk by confronting Cannon in such a “dyspeptic” way. He even “took pains to remind” her that the appeals court has already reversed her “erroneous rulings” twice. Cannon’s response made it clear that she “feels she has been insulted.” If this case ever does go to trial in Cannon’s Florida courtroom, the Washington-based prosecutor will be playing an away game before an offended judge appointed by the defendant.