Judge Cannon has 'sword of Damocles' hanging over her for Trump classified trial: expert

U.S. District Judge Aileen Cannon, who is presiding over Donald Trump's classified documents slog of a case, has put special counsel Jack Smith in a tough spot.

Laurence Tribe, while appearing on MSNBC's "The Last Word" with Lawrence O'Donnell, described the predicament Smith is in for as long as Cannon remains on the bench in the case.

On Thursday, Cannon was unmoved by Donald Trump’s attempt to dismiss the criminal case against him for mishandling classified documents and obstructing the government's attempts to recover them on grounds that the 1978 Presidential Records Act insulated him from prosecution.

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Trump is defending himself on 32 counts of violating the Espionage Act.

READ MORE: A criminologist explains why keeping Trump from the White House is all that matters

But the fact that Cannon left open the option for the same argument to be revisited at trial is something that Tribe believes is tricky to navigate, and is one that Special Counsel Jack Smith could seek to get overturned by the 11th Circuit Court of Appeals.

"Even though it's futile, sometimes it's important to check a box," he said. "Despite the fact that you know what is going to happen, the reason it's important is that I know there are some judges on the 11th Circuit who will say she has not made a clear enough error, the error she made is not an error of omission. She has admitted to rule as he should have ruled definitively, as a result she's had a sword of Damocles that she will hang over the prosecution throughout the trial; that she can drop at any time."

It's Tribe's belief that Cannon has been treading ever so carefully, fully aware that the three-judge panel above her could find she erred in judgment.

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