Jack Smith, in Startling Move, Denounces Judge in Documents Case as ‘Wrong’ and a Perpetrator of ‘Manifest Injustice’

It turns out President Trump isn’t the only one who can unleash a tirade against a judge. Could Smith’s next move be a motion for Cannon to recuse herself?

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

Special Counsel Jack Smith’s strongly worded motion requesting that Judge Aileen Cannon reconsider an order unsealing the names and statements of some witnesses in the Mar-a-Lago documents case against President Trump could be a harbinger of an even more dramatic move to remove her from the case.

Mr. Smith warns that Judge Cannon’s order would “disclose the identities of numerous potential witnesses, along with the substance of the statements they made to the FBI or the grand jury, exposing them to significant and immediate risks of threats, intimidation, and harassment.” 

The special counsel declares that Judge Cannon, who was appointed by Mr. Trump, “applied the wrong legal standard” in deciding to publicly docket the information in respect of the case’s witnesses. This would be a shocking mistake, even for a novice jurist. She insists that the government demonstrate a “compelling interest” to keep the information redacted. He insists that he must only show “good cause.”

Mr. Smith’s throwing down of a gauntlet sets up a dramatic next phase in the litigation. Judge Cannon could admit she erred, though her invitation for Mr. Trump to respond to this motion by February 23 suggests she is disinclined to do so. If she holds firm, the special counsel can appeal that ruling. He could also move for the nuclear option — a request that Judge Cannon recuse herself or be removed.       

While this motion asks Judge Cannon to undo her own decision, it telegraphs a clear message to the riders of the 11th United States Appeals Circuit that if she does not do so, the appeals judges will soon be invited to overturn her. The prosecutor writes that “reconsideration is warranted” because Judge Cannon’s order would perpetrate “manifest injustice.”

Mr. Smith objects to the “public identification of more than two dozen people who participated in the investigation,” among them witnesses “expected to provide important trial testimony who will likely be subject to threats, intimidation, and harassment.” He calls that eventuality “concrete and palpable” and asserts that disclosure of discovery is not protected by the First Amendment. Mr. Trump is likely to contend that disclosure is necessary to his constitutional right to confront his accusers.

The government’s filing is eyebrow-raising and far from the norm. A motion for reconsideration is not contemplated in the Federal Rules of Criminal Procedure, though the Supreme Court and the 11th Circuit have allowed them. The court that sits above Judge Cannon calls it “an extraordinary remedy that should be employed sparingly.” 

Mr. Smith’s accusation that Judge Cannon “applied the wrong legal standard and issued orders that, in practice, will expose witnesses and others to intolerable and needless risks” is marbled with references to 11th Circuit precedent, as if he is already preparing for an appeal. The repeated reference to the circuit is also likely intended to send a not too subtle message to the judge — that the indignity of appellate reversal could be around the bend.

Judge Cannon notes that Mr. Smith’s worry about danger to witnesses is too “speculative,” to which he responds that the “court’s duty is to prevent harms to the witnesses or the judicial process,” a duty in which he now suggests Judge Cannon is defaulting. He invokes a “dangerous atmosphere” for anyone involved in this case, which charges Mr. Trump with 44 crimes. 

The special counsel references a “well-documented pattern in which judges, agents, prosecutors, and witnesses involved in cases involving Trump have been subject to threats, harassment, and intimidation.” He cites a “racist death threat” made to Judge Tanya Chutkan in the January 6 case and threats and harassment directed at his own office.     

The 11th Circuit has already overruled Judge Cannon twice before, in an earlier iteration of this case. First, it reversed a stay she imposed on the investigation of the Mar-a-Lago matter pending the review of the government’s work by a special master, or independent expert. Next, it vacated her order appointing the special master. That allowed Mr. Smith to eventually hand up charges.

In a unanimous and per curiam decision, an appellate panel wrote that “the law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant.” They called Judge Cannon’s ruling a “radical reordering of our case law limiting the federal courts’ involvement in criminal investigations” that “would violate bedrock separation-of-powers limitations.”

Any motion for recusal would first be addressed to Judge Cannon herself and then to the 11th Circuit. The federal code mandates that a judge “shall proceed no further” if he harbors “personal bias or prejudice against either party.” Another provision demands recusal of a judge “in any proceeding in which his [or her] impartiality might reasonably be questioned.”

The bar is high, but if this filing is any indication, Mr. Smith is seriously considering whether it’s worth the jump.


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