The latest rebuke to Special Counsel Jack Smith from Judge Aileen Cannon raises the possibility that, from the government’s perspective, the veteran prosecutor erred in not moving for her recusal, a rare and disfavored remedy, at the first opportunity.  

Judge Cannon’s impatience with the government has emerged as a through line in the Mar-a-Lago documents case over which she presides. Her latest rebuke came after Mr. Smith warned her not to “be manipulated” by President Trump’s request for a delay from her trial’s start date on May 20.

Mr. Smith argues that Mr. Trump’s use of scheduling conflicts between this and his January 6 case is misplaced because that one, too, could be delayed due to pre-trial motions. The special counsel tells Judge Cannon that the former president is animated by an “overriding interest in delaying both trials at any cost.”

The prosecutor likely thought that he would gain points with Judge Cannon by alerting her to Mr. Trump’s designs for delay. Instead, he received a reprimand. In a paperless order, the judge chided that the “substantive content of any such notice” may not “exceed 200 words.” Mr. Smith’s filing was 237 words. Her focus on those 37 excess words is a clear signal of judicial displeasure.

Judge Cannon adds that “future non-compliant noticed or unauthorized filings will be stricken without further notice,” a warning to Mr. Smith that she is uninterested in his general cogitations. At a hearing last month, she castigated the government for “frankly wasting the court’s time” for raising arguments at a hearing that had not been properly briefed in advance.

More worrisome for Mr. Smith than Judge Cannon’s sharp words is her openness to acceding to Mr. Trump’s request for a trial sometime after “mid-November 2024,” when he could be president again. At a hearing last week, she told both parties that she was “having a hard time seeing how realistically this work can be accomplished in this compressed period of time, given the realities that we’re facing.”

This scheduling skepticism stands in sharp contrast to Judge Tanya Chutkan, who is overseeing the January 6 case and has set a trial date in March, with jury selection to begin in February. Judge Chutkan on Tuesday allowed for the possibility of minor delays in the run-up to that trial, but nothing so significant that it would demand a rescheduling of opening statements.

While Mr. Smith has not yet asked Judge Cannon to step aside, thousands have. An online petition on the “Advocacy” platform demanding her recusal has garnered more than 40,000 signatures and calls her “compromised and indebted” by loyalty to the former president, who nominated her for the bench.

While online petitions will not dislodge Judge Cannon from the case, a motion by Mr. Smith could lead to that outcome. Any recusal request is heard first by the judge in question, who, according to federal law, is required to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

Mr. Trump has moved for removal on the part of Judge Chutkan, albeit without success. A recusal decision, once made, is eligible for appeal, though courts have generally held that recusal is disfavored and that it is unwarranted in the absence of concrete evidence of partiality. Judge Chutkan, for one, found that her harsh comments about Mr. Trump, made in the trials of other January 6 defendants, did not warrant disqualification.

Mr. Smith has likely refrained from asking Judge Cannon to step aside because he reckons that such a request would not stand up on appeal. This despite Judge Cannon, during an early iteration of this case, ordering prosecutors to stop their work and defer to a court-appointed “special master,” or an outside expert. 

That plan was revoked by a panel of the United States Court of Appeals for the 11th Circuit, which accused Judge Cannon of “a radical reordering of our case law” that violated “bedrock separation-of-powers limitations.” She later drew the case again via a lottery. Should Mr. Smith move to remove her, the 11th Circuit would again have occasion to review Judge Cannon’s work.