Legal expert lays out best way for Jack Smith to fight back against Judge Cannon

Political and legal commentator Allison Gill, better known as "Mueller, She Wrote," laid out in detail in a thread on X what special counsel Jack Smith should do to rein in far-right Judge Aileen Cannon's effort to tilt the jury instructions in favor of former President Donald Trump's claim that the Presidential Records Act protects him from the charges in the Mar-a-Lago classified documents case.

Cannon, herself a Trump appointee, recently denied Trump's motion to dismiss the case on PRA grounds — but she also refused to make a factual determination on the matter as Smith demanded. Some commentators have suggested he immediately go to the 11th Circuit and ask them to overrule Cannon — but Gill thinks that's premature, and there's a better option.

"I've read over all the filings, & after consulting a bunch of experts, & after recording this weekend's episode of the Jack podcast, here's what I think Jack Smith will do w/re to Cannon's ruling on Trump's motion to dismiss based on the Presidential Records Act," wrote Gill. "Smith asked her to dismiss Trump's PRA motion, adapt his correct jury instruction based on a proper reading of the statute, and said that if she uses incorrect jury instructions, he would seek a writ of mandamus from the 11th circuit."

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"Cannon accused him of demanding she finalize jury instructions ahead of trial, but he didn't. He only proposed a proper jury instruction because SHE ordered him to write some based on a total misinterpretation of law," wrote Gill. "I think the only reason he asked her to adopt his proper jury instruction is because she asked him to write improper ones. She did dismiss Trump's PRA motion. So I don't think he has a reason at this juncture to go to the 11th circuit."

Instead, she argued, "I think he will ask her to preclude trump from using a PRA defense in a future motion in limine. If she denies that motion, I think he will appeal that to the 11th circuit. If he wins, she won't be able to base jury instructions on the PRA b/c Trump won't be able to argue it. If he loses his appeal and Trump can use the PRA as a defense, and she improperly includes it in jury instructions, I think that's when the government would halt proceedings and seek a write of mandamus."

"She still has to rule on his motion to reconsider her order to unseal witness names and testimony. If she denies his motion for reconsideration, I think that would be a sooner vehicle for appeal to the 11th circuit. Just my two cents," she added.

Gill is not the first commentator to suggest that Smith should start out by trying to use a motion in limine to block the PRA from being considered as evidence; former federal prosecutor Mary McCord has raised the same idea.

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