Former federal prosecutor Harry Litman used his Wednesday evening appearance on MSNBC to lay into right-wing Judge Aileen Cannon's latest behavior in the Mar-a-Lago classified documents case — and explain how special counsel Jack Smith, too, has grown fed up.
Cannon, who has intervened in the case in former President Donald Trump's favor multiple times and is herself a Trump appointee, has moved to propose the jury consider Trump's baseless claims to be shielded from prosecution for hoarding classified documents by the Presidential Records Act — while refusing to resolve the issue herself, in a way that could let her shut down the whole trial later. Smith has responded with a not-so-subtle threat to go over her head to the 11th Circuit and ask that they intervene.
"Let me start on you because I read your column," said anchor Chris Hayes. "What is the purpose of this filing that Jack Smith filed in response to Judge Cannon?"
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"So, for starters, Chris, just as you said, the law she is entertaining is ludicrous," said Litman. "The position, moreover, has got no basis."
Additionally, he continued, "There is an extra, important step here that makes this really aggressive. What has been really vexing about Cannon is that she has, again and again, just refused to rule, period. This kind of academic exercise, let's talk about instructions, not only avoids a ruling, which is what you need to take things on appeal, but even suggests she might do this kind of shift at trial, after which double jeopardy would prevent a retrial."
"What Smith says ... he is saying, you have to decide this, Judge Cannon, and you have to decide it in plenty of time for us to appeal, and if you don't, if you continue to dither, then we are going to mandamus you, for the very act of not deciding," Litman added. "So far, you have not given us enough to latch on to. Guess what, if you continue to not give it to us, we will mandamus that very point and, as you said, pretty well-primed by her previous conduct to know something is amiss. They are calling out, not just the law, but her whole cat-and-mouse game of not issuing decisions."
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