How Judge Cannon’s New Calendar Could Be Bad News for Jack Smith’s Mission To Try Trump

Judge Aileen Cannon’s cancellation of hearings relating to President Trump’s contention that the Biden administration is behind his Mar-a-Lago prosecution could amount to a short-lived — even Pyrrhic — victory for Special Counsel Jack Smith. Those hearings had been scheduled for later in June, and they were intended to clarify the scope of the prosecution team. Under the Supreme Court case of Brady v. Maryland, any entity involved in the prosecution is proactively obliged to turn over evidence that could help acquit. Mr. Smith contends that the team encompasses himself and a few FBI agents. Trump argues that the White House, intelligence communities, the Department of Justice, and the National Archives have all been involved in his prosecution. He wants potential evidence from all of them. Judge Cannon considered that position robust enough to devote three days to it on the revised calendar she issued last month after delaying the trial indefinitely. The special counsel opposed holding the hearings at all, noting that such a colloquy has never been held in the Southern District of Florida. Trump replies that Mr. Smith was appointed two days after the 45th president announced his intention to run to become the 46th one. Trump also points to meetings, at Atlanta and the White House, between lawyers from the White House counsel’s office and the erstwhile special prosecutor of Fulton County, Nathan Wade, the then-boyfriend of Fulton County’s district attorney, Fani Willis.Judge Cannon writes that “in light of the scheduling adjustments above, the Court hereby cancels the partial evidentiary, multi-day hearing” devoted to this question of the scope of the prosecution team. She promises that the sessions “will be reset by subsequent Order.” Neither Trump nor his co-defendants, Waltine Nauta and Carlos De Oliveira, are required to attend this month’s hearings.Instead of sussing out whether Mr. Smith is a presidential proxy, Judge Cannon will devote that time to further arguments on Trump’s “Motion to Dismiss the Indictment Based on the Unlawful Appointment and Funding of Special Counsel Jack Smith.” This is supplemental time — June 21 is already devoted to determining whether Mr. Smith’s appointment by Attorney General Garland, without Senate confirmation, was constitutional.Judge Cannon’s decision to keep the session devoted to Mr. Smith’s appointment while canceling the one related to the scope of the prosecution team could indicate that she thinks the arguments against Mr. Smith are more advanced — or stronger. She writes that the hearing on that subject will begin at 9:30 a.m. and continue “for the duration of the day.” The judge has ruled that arguments will be heard not only from parties to the case but also from amici curiae, or “friends of the court,” on both sides of the issue. Now, in this latest order, she contemplates any “presentation of evidence” and a potential need for “further factual development.” Judge Cannon also scheduled a hearing to consider Mr. Smith’s motion to amend the conditions of Trump’s release to bar him from criticizing the law enforcement personnel involved in the search of Mar-a-Lago.While Judge Cannon did not disclose the reasoning behind the edited calendar, she could have decided that considering the appointment issue and the prosecution team matter within a week of each other would be an unwieldy juxtaposition. Another possibility is that she worried that two hearings in which Mr. Smith would be required to play defense could strengthen a potential appeal from the special counsel that alleges bias.The judge, who is relatively new to the bench — she was appointed by Trump in 2020 — could also realize that her desire to hear oral arguments on this gamut of pre-trial motions is creating a logjam, even with no trial date on the calendar. The crawl of a tortoise rather than the sprint of a hare could fit with her own sense of the case’s cadence. It also could align with Trump’s desire to sit at the Oval Office before a jury is seated.

How Judge Cannon’s New Calendar Could Be Bad News for Jack Smith’s Mission To Try Trump

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