Jack Smith will “regret” not trying to recuse Aileen Cannon: attorney

Special Counsel Jack Smith, may regret “toughing it out” instead of seeking to recuse the judge overseeing the Donald Trump classified documents case, a legal analyst has said.

Former federal prosecutor Joyce Vance wrote that Trump appointee Aileen Cannon is locked in “an inexplicable grudge match with the special counsel’s office.” Vance served as United States attorney for the Northern District of Alabama from 2009 to 2017.

Smith is a Department of Justice special counsel in charge of prosecuting Trump for both the classified documents case and the former president’s Washington D.C. indictment for allegedly interfering in the 2020 election.

Writing in her Civil Discourse blog on the Substack writing site, Vance said that Smith should have sought Cannon’s removal “straight off the bat when he had the opportunity.”

During his presidency, Trump appointed Cannon as a federal judge for south Florida, where he is currently indicted for allegedly hoarding classified documents at his Mar-a-Lago estate in Palm Beach.

“The reality is that Judge Cannon lacks the temperament to be a federal judge, at least in a case involving the man who put her on the bench. Perhaps she wants to avoid displeasing people whose support she thinks she may need in the future. Perhaps she would have ruled this way in any event,” Vance wrote on Saturday.

Vance was reacting after Trump’s lawyers asked Cannon to delay the Florida trial because it was scheduled too close to his election interference trial in Washington D.C. After making the request in Florida, the former president’s legal team then asked the judge in the district to delay that trial as well.

Prosecutors wrote a brief note to Cannon questioning why Trump’s lawyers were seeking to delay the Florida trial if they were also seeking to delay the D.C trial—potentially causing another clash.

“I wondered whether Judge Cannon, who has been so unstinting in her criticism of prosecutors, might have some to spare for Trump’s lawyers now,” Vance wrote.

“But she did not. Instead, she chastised prosecutors for violating local rules. She didn’t show any concern about the Trump lawyers’ failure to advise her of the motion they’d made in D.C.”

“Lawyers have a duty to be candid with the court[…]Judges take it seriously. At least, most judges do,” Vance wrote, adding that she believed Trump’s lawyers were trying to deceive Cannon by not telling her that they were also seeking a delay in the Washington D.C. case.

“She acted as though prosecutors had committed a major offense, rather than trying to set the record straight when the defense failed to do so. Perhaps the judge believes it would be better to litigate in a world where parties are afraid to bring deception to the court’s attention for fear of being sanctioned? That is not how the American system of justice is supposed to work,” Vance wrote.

Last week, prosecutors also objected to Cannon’s decision to delay the pre-trial schedule.

Cannon’s ruling could significantly delay the Florida trial, which is due to start in May.

Stephen Gillers, a law professor at New York University, told Newsweek that Smith would face major hurdles in any efforts to remove Cannon.

“Will Cannon be removed? Smith has to go to the circuit to get a new judge and success in any such effort at this point seems highly improbable. Frankly, one might be forgiven for concluding that Cannon doesn’t want to try the case. If Trump wins, she won’t have to,” Gillers said, suggesting that Trump will have the Florida case annulled if he is reelected president.

Stephen E. Smith, a legal professor at Santa Clara University in California, told Newsweek that he “can’t imagine or even picture the procedure” by which Cannon might be removed. “The chief judge of the district is not going to reach into a case and reassign it just because they think mistakes are being made,” he said.

While Cannon has been criticized for delaying the schedule, she has had to face Trump lawyers arguing over the disclosure of more than 1 million pages of evidence.

There was also the added complexity of establishing secure rooms in which both prosecutors and defense lawyers can review the highly sensitive documents found at Mar-a-Lago.

Trump pleaded not guilty in June to 37 criminal counts related to his handling of materials after prosecutors alleged he repeatedly refused to return hundreds of documents containing classified information. In August, Trump maintained his innocence in three additional felony charges in the Florida case.

The same month, he pleaded not guilty to charges of illegally attempting to overturn the results of the 2020 presidential election.

Newsweek sought email comment from the federal courts in south Florida, where Cannon presides, and from Trump’s legal team.