Aileen Cannon testifies remotely before the U.S. Senate Committee on the Judiciary on July 29, 2020. Cannon is presiding over the classified documents prosecution against Donald Trump. (U.S. Senate Television, CNP, Zuma Press/TNS)
Former president Donald Trump, whose legal strategy in fighting four indictments has largely centered around attacking the legal system, on Thursday publicly defended the judge overseeing his classified documents mishandling case, calling her “highly respected” even as he regularly lambastes jurists in two of his other criminal cases.
Trump spoke out about the ongoing dispute between special counsel Jack Smith and U.S. District Judge Aileen M. Cannon after Smith filed court papers saying Cannon is pursuing a legal theory that is “wrong.” The special counsel’s filing urged Cannon to rule quickly on whether the Presidential Records Act allowed Trump to keep highly classified documents after leaving the White House, so that if she says it does, he can ask a higher court to overrule her.
Trump, who has been hit with three separate gag orders after criticizing judges, their staffs, their relatives or trial participants, attacked Smith and leaped to Cannon’s defense in a social media post Thursday morning.
The special counsel “should be sanctioned or censured for the way he is attacking a highly respected Judge, Aileen Cannon, who is presiding over his FAKE Documents Hoax case in Florida,” the post said. “He is a lowlife who is nasty, rude, and condescending, and obviously trying to ‘play the ref.’”
Nothing about Smith’s filing is likely grounds for punishing him; he did what Cannon told him to do, albeit with a detailed argument about why the reasoning behind the request was wrong. Smith’s criticism was focused on Cannon’s specific order, not her general handling of the trial.
Former federal judge Jeremy Fogel, who now runs the Berkeley Judicial Institute, said the timing of Trump’s statement is as significant as what he said, because it could create the impression that when Cannon rules, she is responding in part to what the former president has said.
“Statements like that give rise to the impression that they are in a position to influence the judge,” Fogel said. “The context is very important. Mr. Trump’s post on Truth Social comes at a critical juncture in the documents case and effectively is a response to the special counsel’s filing Wednesday. The best practice in a situation like this is for the judge to make a statement to the effect that their decision will be influenced solely by the facts and the law and not the out-of-court statements of a party or anyone else.” Robert Mintz, a former federal prosecutor, said Trump’s comments were not surprising but did carry risks for him as a defendant.
“Given the enormously high stakes for both the prosecution and the defense, it is not surprising to see heated rhetoric and strident arguments from both sides,” Mintz said. “What is surprising is just how quickly the judge herself has become the central focus of this case. … Turning the trial into a referendum on the judge may be effective from a public-relations standpoint, but as a legal matter it runs the risk of further politicizing the case and creating even more legal issues that could later backfire on the defense.”
Cannon is weighing Trump’s claims that the Presidential Records Act, or PRA — a law that designates official presidential papers as belonging to the government, rather than individuals — overrides the enforcement of the Espionage Act under which Trump has been charged.
Trump faces 32 counts of violating the Espionage Act, each for a specific classified document that he is alleged to have illegally retained at Mar-a-Lago, his Florida home and private club, after his presidency ended. He has pleaded not guilty to those charges, as well as eight additional counts of obstructing government efforts to retrieve the sensitive papers.
His lawyers argue that the former president had the authority under the PRA to declare even highly classified documents to be his personal records and property. Last month, Cannon asked prosecutors and defense lawyers to submit proposed jury instructions in the case based on two scenarios, one which largely adopts Trump’s legal interpretation. Legal experts say both scenarios significantly misstate the law.
Smith responded in writing this week, just before a midnight deadline, saying Cannon’s instruction was based on a “fundamentally flawed legal premise” that would “distort the trial.”
The filing was unusual in that prosecutors rarely seek direct confrontations with judges overseeing their cases. In doing so, Smith made clear he sees significant potential danger for his prosecution in Cannon’s approach to the PRA issue. How Cannon, a Trump nominee who has been on the bench since late 2020, responds to his filing will be critical.
If she rules that the PRA protects Trump, Smith could appeal. If she retreats from the disputed legal premise, the issue could fade into the background as she decides a pretrial hearing schedule and sets a trial date.
Cannon’s court docket includes a host of undecided legal questions, and prosecutors have urged her to move quickly. It’s possible that on this issue too, she simply takes time to make her next move.
In the meantime, Trump is scheduled to stand trial in New York on April 15 for allegedly falsifying business records to cover up a hush money payment during the 2016 election. Two other criminal cases stemming from Trump’s efforts to block Joe Biden’s 2020 election victory have been moving slowly through pretrial proceedings and appeals.
In the documents case, Trump’s lawyers argue that the PRA allows the former president to keep even highly classified government documents as his personal property.
Prosecutors and legal experts have said such claims badly misstate the law, which was passed to ensure that presidential records would be turned over to the National Archives and Records Administration at the end of a presidency. Cannon’s focus on jury instructions at this stage of the process has flummoxed legal experts, because judges typically first resolve a host of more pressing questions about the beginning of the trial, rather than the jury instructions that come at the end.
Trump’s team said in its own late-night filing that Cannon’s assignment is consistent with Trump’s position that the “prosecution is based on official acts” he took as president — not illegal retention of materials.
The judge told lawyers to write jury instructions for two legal interpretations. Legal experts said she could use those instructions to help inform her eventual ruling on a request that Trump made to dismiss the case because the PRA allowed him to designate any presidential record as personal.
In one scenario, Cannon asked them to craft jury instructions that assume the PRA allows presidents to designate any documents as personal at the end of a presidency — which is what Trump’s legal team has argued he had the authority to do. She also told them to write jury instructions for a second scenario in which the jury has to determine which of the documents Trump is accused of illegally retaining are personal and which are presidential.
Cannon held a hearing more than a month ago to determine a new date for the classified documents trial. Prosecutors asked for a trial date in early July, while Trump’s lawyers asked to wait until after the election or to start in August at the earliest. The judge has not yet ruled, making further delay more likely.
