Ex-US attorney: Jack Smith "may need to politely tell Judge Cannon to butt out" after latest order

Special counsel may need to push back on Trump-appointed judge for "crossing into" his lane, says Barb McQuade

By Areeba Shah

Staff Writer

Published August 8, 2023 3:28PM (EDT)

Special Counsel Jack Smith arrives to remarks on a recently unsealed indictment including four felony counts against former U.S. President Donald Trump on August 1, 2023 in Washington, DC. (Drew Angerer/Getty Images)
Special Counsel Jack Smith arrives to remarks on a recently unsealed indictment including four felony counts against former U.S. President Donald Trump on August 1, 2023 in Washington, DC. (Drew Angerer/Getty Images)

U.S. District Judge Aileen Cannon on Monday asked special counsel Jack Smith about his use of an out-of-district grand jury in the classified documents case against former President Donald Trump.

Cannon, the federal judge in South Florida assigned to the case, is demanding answers from Smith on the "legal propriety of using an out-of-district grand jury proceeding to continue to investigate and/or to seek post-indictment hearings on matters pertinent to the instant indicted matter in this district."

Most of the classified documents case is being handled out of Cannon's district in South Florida, but some grand jury work in the case was also conducted in Washington D.C., where the former president was also recently indicted for his attempts to overturn the 2020 election.

Cannon took issue with this and questioned why a grand jury heard evidence in D.C. after Trump had already been indicted by a grand jury in Florida, demanding an explanation from Smith by Aug. 22.

"Based on her order, it appears that Cannon is crossing into the government's lane," former U.S. Attorney Barb McQuade, a University of Michigan law professor, told Salon. "Under the constitutional separation of powers structure, the executive branch has sole authority to investigate and charge criminal offenses. There is no reason the special counsel cannot investigate related charges in other districts."

McQuade gave the example of a witness lying to the FBI in D.C., which would mean that the case would properly be charged in D.C. In this case, the special counsel is "not required or even permitted" to share grand jury information from DC with a judge in Florida. 

"It may be awkward, but the special counsel may need to politely tell Judge Cannon to butt out," she added.  

But criminal defense attorney Julia Jayne of the San Francisco Bay area Jayne Law Group said it is unusual for a case to be investigated by grand juries in different jurisdictions.

"Unless this is some play to drop Florida charges and have it proceed elsewhere – say Washington D.C., where the documents originated from – this is an odd development," Jayne said. "If the special counsel wants to add charges or continue investigating the classified documents case, that would typically be done in the same jurisdiction the charges are pending. In this case, that would be Florida."

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Cannon also ordered two sealed filings submitted by Smith on her docket struck from the record. ​​The filings were connected to the request made by Smith's team last week seeking a hearing on potential conflicts of interest that might arise from the legal counsel of Walt Nauta, a Trump associate and co-defendant indicted alongside Trump. Nauta's attorney Stanley Woodward also represents other potential witnesses who might testify against Nauta in the proceedings.

Prosecutors requested a Garcia hearing to inform Woodward's clients about "potential risks and inquire into possible waivers." 

"The Special Counsel states in conclusory terms that the supplement should be sealed from public view 'to comport with grand jury secrecy,' but the motion for leave and the supplement plainly fail to satisfy the burden of establishing a sufficient legal or factual basis to warrant sealing the motion and supplement," Cannon said in the ruling.

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Trump pleaded not guilty last month to 37 criminal counts related to his handling of classified materials after prosecutors said he repeatedly refused to return hundreds of documents containing information from nuclear secrets to the nation's defense capabilities. Nauta also pleaded not guilty to related charges.

A superseding indictment subsequently brought charges against Trump, Nauta, and Carlos De Oliveira, a Mar-a-Lago employee. The new charges included two counts of obstruction based on allegations that the defendants attempted to delete surveillance video footage at Mar-a-Lago in late June 2022, following a subpoena for security footage.

Legal experts have questioned Cannon's fitness since she was assigned to oversee the classified documents case and has frequently handed him favorable rulings.

The Trump appointee slowed down the FBI's investigation by issuing rulings in favor of the former president, including appointing a "special master" to review seized files at Mar-a-Lago. That ruling was later overturned by an appeals court.

Cannon was appointed to the bench by Trump after he lost the 2020 presidential election to Joe Biden.

By Areeba Shah

Areeba Shah is a staff writer at Salon covering news and politics. Previously, she was a research associate at Citizens for Responsibility and Ethics in Washington and a reporting fellow for the Pulitzer Center, where she covered how COVID-19 impacted migrant farmworkers in the Midwest.

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Aileen Cannon Donald Trump Furthering Jack Smith Mar-a-lago Politics