As special counsel Jack Smith mulls whether to petition the 11th Circuit Court of Appeals to overturn at least one of U.S. District Judge Aileen Cannon's recent decisions, he should also consider asking the court to remove her from the case, legal experts argue. In a Tuesday analysis for Slate, Brookings Institution senior fellow Norm Eisen and Joshua Kolb, an attorney and former U.S. Senate Judiciary Committee law clerk, urge Smith to seek Cannon's reassignment in former President Donald Trump's classified documents case, in part, because Smith has already filed a reconsideration motion for Cannon's latest decision to unseal the identities of two dozen potential witnesses.
"The 'clear error' Smith identifies is striking: He alleges that Cannon applied the wrong legal standard in making this decision, requiring him to make a far more stringent showing than should be needed to protect these names," Kolb and Eisen write. "In his motion for reconsideration, Smith shows that the case law—including the very cases Cannon herself cited in her order—does not establish the unreasonable hurdles she wants him to clear."
Cannon ordered Trump to respond to Smith's motion by Friday, which the experts argue will force her hand. "Either she reverses her position—which would be an admission that she was fundamentally mistaken about the law in a way that caused 'manifest injustice'—or she leaves her ruling in place, putting individuals in jeopardy and twisting the law to help Trump," they write, adding that Smith could then have enough "ammunition" to pursue her removal from the case.
Smith could also seek an appeal in the 11th Circuit under the Classified Information Procedures Act should Cannon rule against his petition to redact, summarize or withhold classified information for even a single document. "Should Smith appeal either the witness issue or a CIPA one, he would also be permitted to ask the 11th Circuit to reassign the case to a different judge under the law of that circuit," Eisen and Kolb write.
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