Jack Smith Falls Silent Since Judge Delayed Mar-a-Lago Case: Could He Be Hatching an ‘Extraordinary’ Response?

The special prosecutor’s painful dilemma is whether to try to go over Judge Cannon’s head and risk being forced to admit that he wants to try Trump before the election.

Drew Angerer/Getty Images
Special Counsel Jack Smith arrives to deliver remarks on a recently unsealed indictment including four felony counts against President Donald Trump on August 1, 2023 at Washington, DC. Drew Angerer/Getty Images

Special Counsel Jack Smith’s silence in response to Judge Aileen Cannon’s indefinite delay of President Trump’s Mar-a-Lago trial could signal a calm before a south Florida storm.

The deployment of a powerful tool, one that Mr. Smith has already alluded to, could be in the offing — a request to the United States Court of Appeals for the 11th Circuit for a writ of mandamus ordering Judge Cannon to schedule a trial date. To make that request, though, Mr. Smith would likely have to disclose what he has long resisted — his desire to hold the trial before the election.     

Mr. Smith’s prospects in Florida are bleak. The prosecutor and his camarilla are now without even a notional trial date and must prepare for a host of hearings where the field appears tilted against them. These include sessions devoted to whether Mr. Smith is constitutionally appointed and whether the White House is involved in the case against Mr. Trump.

Mr. Smith now faces a perilous path to trial that could double as a bridge to nowhere. Judge Cannon has ruled that “finalization of a trial date at this juncture … would be imprudent and inconsistent.” She cites the “complexity or unusual nature of the case, the need for adequate preparation for pretrial and trial proceedings, and the need to afford adequate time for effective preparation.”

Cases involving classified information are governed by the Classified Information Procedures Act, which can impose additional delays. That is especially true when, as is the case here, the documents at issue are so sensitive that they must be viewed in a bespoke facility. Judge Cannon, though, appears especially solicitous to Mr. Trump’s suspicions of a political prosecution, and is therefore resistant to rushing.    

Unmentioned by Judge Cannon, though, is Mr. Smith’s disclosure, days before she delayed the trial, that the evidence recovered at Mar-a-Lago was handed over to defendants in a different order than it was collected, meaning that the “sequencing” of documents in boxes had been altered. He also admitted to providing Judge Cannon with an “inconsistent” account of the alteration.

Judge Cannon could yet sanction Mr. Smith or otherwise grant Mr. Trump and his co-defendants the opportunity to contest the evidence, which would only further ensnare the case in delay. Sanctions could also be levied on Mr. Smith’s office for misleading the court and impinging on Mr. Trump’s constitutional right to be provided with the evidence against him. The 45th president’s attorneys accuse the special counsel of “spoliation” of evidence.

Could mandamus be the medicine to what ails Mr. Smith’s case? The writ, the Legal Information Institute explains, asks a higher court to direct a lower one to “properly fulfill their official duties or correct an abuse of discretion.” The Department of Justice’s own practice manual explains that “Mandamus is an extraordinary remedy, which should only be used in exceptional circumstances of peculiar emergency or public importance.”

Mr. Smith could be mulling asking for a writ of mandamus to order Judge Cannon to schedule a trial date. To clear the high bar required to secure mandamus, the special counsel would have to show that his need for a trial is generated by “peculiar emergency.” Judge Cannon has already acknowledged  the “public’s interest in the fair and efficient administration of justice,” a lesser claim. 

The special counsel has not yet, in any court, made the case that his all-fired rush to take Mr. Trump to trial is motivated by the desire to secure a conviction before November 5. In a brief to the Supreme Court, though, he six times mentioned in respect of the January 6 case the public’s interest in a prompt trial, writing that the “national interest in resolving those charges without further delay is compelling.”

Left unsaid, though, is why such an accelerated resolution is compelling. A second Trump term could mean the end of any federal prosecution, either via the appointment of an attorney general who was prepared to fire Mr. Smith or the use of the pardon power to neuter a conviction. Courts — both the Supreme Court and Judge Cannon’s district one — are not meant to consider political questions. For them, November 5 is just another day.

While courts have recognized that the government has an interest in seeing that trials transpire, the constitutional right to a speedy trial found in the Sixth Amendment belongs to “the accused.” Even if Mr. Smith could get a writ to compel Judge Cannon to schedule a date, it is unlikely that the 11th Circuit would see any harm coming to the prosecution from, say, a December start. That is, unless they agree that politics has a place in the courtroom.      

The New York Sun

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