Jack Smith has had sufficient.
Late Monday, the particular counsel responded to U.S. District Decide Aileen Cannon’s bizarre recent order within the labeled data case in opposition to Donald Trump, which requested the events to suggest jury directions primarily based on flagrantly fallacious authorized premises. Smith’s reply, in impact, was “I’m not taking part in.”
Fairly than tackle Cannon’s cockamamie task, Smith laid out correct jury directions primarily based on the precise fees and legislation.
Cannon had ordered the events to “have interaction with” the Trump workforce’s recurrent misinterpretation of the Presidential Information Act, which has no authorized bearing on the case. Her order additionally relied on an account of the info — particularly, that Trump might have magically transformed all of the labeled authorities data at subject into his private property as he left the White Home — that has all the time been past unbelievable.
In impact, Cannon was ordering the Justice Division to imagine that the world is flat after which map a route from Atlantis to Arcadia.
However the order wasn’t simply daffy; it was pernicious.
As I defined when the judge entered the order, her “Alice in Wonderland” antics appeared designed to keep away from issuing a ruling that prosecutors might attraction whereas additionally setting the stage for her to undertake Trump’s ridiculous claims after a jury has been impaneled.
That could possibly be a deadly blow to Smith’s case. As soon as a jury is chosen, even a ridiculous order can deliver a prosecution to a tough cease as a result of the Structure’s double jeopardy clause precludes retrial. It might be the judicial equal of an ideal crime.
Together with a lot of the nation, the particular counsel has little question watched in frustration as Cannon has repeatedly indulged foolish arguments from Workforce Trump whereas consuming up weeks and months that prosecutors — and voters — don’t have. She has taken a cut-and-dried case primarily based on overwhelming proof and made it an extended shot to be tried this 12 months, when it issues most.
Her conduct has raised the query of when and the way Smith might ask the eleventh Circuit Court docket of Appeals to take away her from the case. That may be a heavy raise, and but Cannon’s earlier bungling of a search warrant within the case was so excessive that one other grievous error might justify such an uncommon treatment.
However Cannon has appeared to play a form of cat-and-mouse sport with the prosecution, favoring Trump with delays whereas avoiding definitive rulings that Smith’s workforce might readily attraction.
The particular counsel’s newest submitting suggests the top of the sport could also be close to. The federal government’s 24-page reply states flatly that the choose’s “authorized premise is fallacious, and a jury instruction … that displays that premise would distort the trial.” Beneath the standard guidelines of discourse between choose and litigants (and particularly federal prosecutors), that’s fairly cheeky.
Nevertheless it was only the start of Smith’s pushback. The particular counsel proceeded to instruct the choose — once more opposite to regular etiquette — that it’s “vitally essential” that the courtroom decide about Trump’s Presidential Information Act arguments. In different phrases, Cannon’s valuable thought experiment was not solely wrongheaded; it was a dereliction of the courtroom’s fundamental accountability to rule on the events’ motions.
The Justice Division is popping the tables on Cannon by telling her to only determine the matter already. Smith’s workforce additionally put the necessity for a speedy trial in notably clear phrases: “Regardless of the courtroom decides, it should resolve these essential threshold authorized questions promptly. Failure to take action would improperly jeopardize the Authorities’s proper to a good trial.”
The prosecution additional referred to as out Cannon’s risk to subject a consequential ruling after a jury is impaneled, writing, “The Authorities will need to have the chance to contemplate appellate overview nicely earlier than jeopardy attaches.”
The Smith workforce then made its most essential and aggressive transfer by noting that when judges have issued clearly misguided jury directions that doom prosecutions, “courts have permitted the federal government to acquire writs of mandamus.”
Even buried in a parenthetical as it’s, the phrase “mandamus” jumps off the web page as a risk to hunt a rare intervention by the appellate courtroom. Smith has laid down the gauntlet, telling Cannon in no unsure phrases that if she doesn’t transfer to resolve Trump’s frivolous arguments nicely forward of trial, he’ll deliver a writ of mandamus to the eleventh Circuit together with a movement to recuse her from the case. Offering this street map of his intentions places Smith on agency footing to problem the choose if she continues to dither.
For that motive, this temporary is the particular counsel’s most essential within the case because the indictment. Beneath the circumstances, it’s the strongest doable transfer to hurry the prosecution to a trial earlier than the election. Both Cannon will transfer the case alongside, or the division will attempt to take away her from it.
Harry Litman is the host of the “Talking Feds” podcast and the Talking San Diego speaker collection. @harrylitman