Trump judge can’t avoid 'showdown' with Jack Smith forever: expert

Top Lawfare editor Roger Parloff doesn't buy the argument that special counsel Jack Smith can have Judge Aileen Cannon removed using the legal tactic called "mandamus."

Several legal experts argued that Cannon's refusal to rule on several motions violated her duty as a judge. When Cannon ruled over the Presidential Records Act (P.R.A.) on Thursday, she said that, for now, she is dismissing Trump's defense before the trial. She said that she reserves the right to bring it back up during the trial.

The concern is that Cannon is sitting on all of the motions to dismiss until the jury is seated. Once they're seated, Cannon can rule on the motions and dismiss the case, and Trump can't ever be tried again due to double jeopardy.

Read also: A criminologist explains why Judge Cannon must step away from Trump trial immediately

Parloff doesn't think Smith can have her removed based on the "duty" requirements, but it isn't long before Smith can have her removed on "something," he wrote on Friday.

"There are too many frivolous Trump motions pending, and given her extreme aversion to ruling against Trump (for whatever reason), she can’t dodge them all indefinitely," Parloff wrote on X. "Each may give Jack a chance to seek reassignment, which some 11th Cir. judges may already favor."

One example he cited is Trump's demand to dismiss the case based on selective or vindictive prosecution.

"At times during the 3/14/24 hearing, Cannon seemed to be laying a foundation for granting that, which would be unprecedented," he said. "Then there’s Cannon’s 2/6 order—stayed pending a motion to reconsider that’s been fully briefed since 2/28—to unseal witness names and testimony, exposing them to harassment, intimidation, and threats. Jack’s all but promised to take her to the 11th Circuit on that one."

Another allegation from Trump's team demands the case be dismissed due to prosecutorial misconduct and demands the ruling that his former lawyer, Evan Corcoran, must testify in the case.

"That’s still on Cannon’s Undocketed Docket, so we haven’t seen it, but it, too, might offer a chance," Parloff explained.

"Even Trump’s motion to dismiss for presidential immunity becomes plausible if one entertains her proposed jury instructions," Parloff continued. "If a president’s absconding with classified docs means he’s designating them as 'personal' under the P.R.A., then that’s an 'official act' and might be protected."

When it comes to Cannon asking the parties to choose between two jury instructions that many experts have described as absurd, Parloff said Cannon could bring it back up during trial because such instructions aren't typically determined until the middle of the trial.

"The problem, though, is that here there’s a chance that Cannon might spring a directed verdict of acquittal after the government's case in chief—and before a charging conference—discharging Trump forever, since double jeopardy would bar appeal," he noted.

See the full thread here.

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