"Big gamble": Experts say Jack Smith's last resort may be to try to get Judge Cannon kicked off case

The bar for removing a judge is "exceptionally high" — but it could pressure Cannon to speed up proceedings

By Charles R. Davis

Deputy News Editor

Published May 16, 2024 10:24AM (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)

When has Donald Trump ever had kind words for a judge overseeing a case against him? It’s not a rhetorical question, but one with an answer: when that judge is someone he picked himself.

In Manhattan, where the former president’s hush money trial is underway, Trump has asserted that Judge Juan Merchan is “TOTALLY COMPROMISED, CONFLICTED, AND CORRUPT.” In Florida, where Trump’s classified documents case is totally stalled, U.S. District Judge Aileen Cannon, his appointee, is “very smart and very strong and loves our country.”

Cannon, indeed, has been everything Trump could ever want in a judge. The Republican candidate’s strategy in all his criminal cases has been to delay the proceedings and then delay them some more, hoping to run out the clock until some future MAGA attorney general can throw them out.

In only one case – Cannon’s – has the judge been so transparently willing to play along, recently deciding to throw out the May 20 trial date she set, after being randomly assigned the case last June, and electing instead to hold what The New York Times described as an “unusual” set of hearings on a Trump defense team argument: that prosecutors must have worked with the White House before they charged the defendant and should thus have to hand over those communications as part of discovery.

The decision to scrap the trial date has dashed hopes that Trump’s alleged mishandling of national security secrets will go before jurors anytime soon, much less before the November election. But special counsel Jack Smith does have one option, which he already hinted at deploying in an April legal filing, back when Cannon wanted to instruct prospective jurors that maybe Trump had a legal right to take any classified documents he pleased: a “writ of mandamus.”

“If I were working on this, I would file a writ of mandamus ASAP,” defense lawyer Glenn Danas, a partner at the Clarkson Law Firm, told Slate.

In something more approximating plain English: Smith could ask Cannon’s de facto bosses at the U.S. Court of Appeals for the 11th Circuit, who have already thrown out her decisions before, to remove her from the case altogether. The argument for this is that Cannon has already shown herself to be biased and that this has manifested itself in rulings that clearly defy the law.

“It seems like she’s going out of her way to afford the defendants an extraordinary amount of time and her own judicial resources to get every single thing that they want done in a way that seems unusual,” Danas said.

We need your help to stay independent

He’s not alone in thinking Cannon has taken a relatively simple case – we know Trump had classified documents, including information on battle plans and nuclear programs, and we know the FBI had to go and get them back – and made it seem more complicated than it is, justifying repeated delays.

But a writ of mandamus is a last resort, when a prosecutor believes and can demonstrate that their case has been effectively destroyed by a judge clearly violating the law. And the consensus last month, when Cannon pulled back from issuing legally flawed jury instructions, was that she had done just enough to prevent an appeals court from firing her.

As The Washington Post’s Jennifer Rubin noted, the bar for a writ of mandamus “is exceptionally high,” requiring that prosecutors show they have no alternative and a “clear and indisputable right to the requested relief,” which in her view “makes this a long shot.”

Stephen Gillers, a law professor at New York University, agrees.

“Mandamus is a way to get appellate review in extreme cases where appeal is not possible but the trial judge's decision is clearly wrong,” Gillers commented. “Mandamus would be a big gamble here and almost certainly lose."

Indeed, that’s Danas’ view too. But his argument is that, by explicitly demanding a trial before November, and suggesting that he might file a writ if denied, the special counsel can pressure Cannon to move at a quicker pace. What, at this point, does he have to lose?

“Perhaps it’s better just to be forthright about it and say, ‘I’m a special prosecutor and I don’t necessarily have a political dog in the fight, but I think it’s important for the country’s functioning to get these things done in an average way,” Danas said, “if not on a fast track, then at least on a normal track.’”

By Charles R. Davis

Charles R. Davis is Salon's deputy news editor. His work has aired on public radio and been published by outlets such as The Guardian, The Daily Beast, The New Republic and Columbia Journalism Review.

MORE FROM Charles R. Davis

Related Topics ------------------------------------------

Aileen Cannon Analysis Donald Trump Jack Smith