Legal analysts sharply divided as they predict Jack Smith's next move in Trump's docs case

Legal experts on Thursday attempted to predict Special Counsel Jack Smith's next move in Donald Trump's criminal case over classified documents. They were sharply divided.

Smith has had numerous confrontations with the jurist overseeing the federal case in Florida, Judge Aileen Cannon, including recently calling her out to decide on the merits Trump's arguments based on the Presidential Records Act. Cannon denied that order and ruled that the PRA doesn't do away with the case completely, but left an opening for presenting the argument to a jury during the process of selection.

Even legal experts who typically agree with one another voiced differences of opinion on the issue on Thursday.

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Former acting solicitor general Neal Katyal said, "Judge Cannon just rejected Trump's bogus Presidential Records Act defense, but only for now. She has (weirdly and pointedly) refused to actually decide the issue, despite Jack Smith's warning that double jeopardy would then apply. I think Smith has no choice but to go to the 11th Circuit on mandamus. It's a tough standard, but it is met here."

But Bradley Moss, a national security attorney, had a different view.

"I respectfully disagree with Neal for one reason: I think Smith has to try to exclude the PRA defense first through a motion in limine. If Cannon denies that route, *then* you seek mandamus relief," he wrote.

Katyal responded:

"Thank you for this. Since Smith basically told her about the need to resolve this issue in his filing a few days ago, lest double jeopardy attach, I don't see what filing the MIL would accomplish. Seems futile, given Judge Cannon's view that resolving this now is 'unjust,'" Katyal said. "Judge Cannon's order today even went so far to say she won't resolve the PRA 'prior to the presentation of trial defenses and evidence' -- or, in other words, only after double jeopardy applies. So I would think it makes sense to go to CA11 now, but I see no harm in filing the MIL and saying we intend to go to CA11 by a date certain (in the next few days) if she doesn't exclude the PRA stuff. The PRA is such a garbage defense, it is beyond laughable that this is taking anyone's time. CA11 should get its hands on it and reverse quickly."

Moss wrote back, saying, "If it were me, I would go with the latter option of filing the MIL, and attach a date certain to it, if only to demonstrate to the 11th Cir you exhausted your other remedies before seeking such extraordinary relief."

A.J. Delgado, formerly a senior adviser to the Trump presidential campaign in 2016 who worked for the Trump transition team after the 2016 election, said Smith doesn't have enough ammunition to remove Cannon.

"I know a lot of Legal Twitter thinks Smith has an avenue to recuse Cannon but, sadly, I don't think he does," she wrote on Thursday. "Incompetent/terrible rulings (unless I'm missing something) aren't a basis for removal, which is generally only given if one shows bias, conflict of interest, etc."

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