U.S. District Judge Aileen Cannon is ignoring "well-settled precedent" with her hearing on Friday on whether Department of Justice (DOJ) special counsel Jack Smith was improperly appointed for Trump's classified documents case, according to legal analyst Glenn Kirschner.
Last June, former President Donald Trump, the presumptive GOP 2024 presidential nominee, was indicted by the DOJ for allegedly mishandling classified documents upon leaving the White House in 2021 and obstructing the government's efforts to retrieve them. Trump's indictment came after the FBI raided his Mar-a-Lago estate in Palm Beach, Florida, in August 2022. The former president has pleaded not guilty to all charges and claims the case against him is politically motivated.
In an attempt to get the charges thrown out, Trump's legal team has argued that U.S. Attorney General Merrick Garland's appointment of Smith to prosecute the case is invalid given that Garland doesn't have the legal authority to appoint someone as special counsel who hasn't been approved by the Senate. Smith's team rebuked the argument, calling it "unsound."
On Thursday's episode of his YouTube show Justice Matters, Kirschner—a former assistant U.S. attorney and frequent critic of Trump—pointed to the unprecedented nature of Friday's hearing that Cannon is holding in Fort Pierce to decide the validity of Trump's argument.
"Since the 1800s, special counsel, specially appointed prosecutors, have been investigating, indicting, and trying cases. None of which seems to matter to Trump-appointed Judge Aileen Cannon. Because on Friday, apparently ignoring all well-settled precedent, Judge Cannon will hold an extended hearing on the question of whether Special Counsel Jack Smith has any right to prosecute defendant Donald Trump," Kirschner said.
Newsweek reached out to the U.S. District Court for the Southern District of Florida via email for comment from Cannon.
Cannon, who was appointed by Trump in 2020, has been criticized as being too Trump-friendly in pretrial proceedings, with some claiming she showed bias when she postponed the former president's trial indefinitely in March. She has also been called inexperienced and overwhelmed by the case.
Kirschner told Newsweek via telephone on Friday that Cannon is "not behaving the way any judge...behaved in my 30 years" as a federal prosecutor.
The legal analyst cited an article published by The Daily Beast on Thursday, titled, "Trump's Favorite Judge Puts Mar-a-Lago Prosecutor on Trial" in his YouTube video.
"Special counsels have been used to investigate all kinds of political scandals, dating back to the presidency of James A. Garfield in the 1880s," the article read. "The Supreme Court already took a look at this in 1974, when it decided during the Nixon affair that the AG [attorney general] does indeed have the authority to appoint a special prosecutor."
United States v. Nixon was a case decided by the Supreme Court amid the Watergate Scandal. A special prosecutor served then-President Richard Nixon with a subpoena duces tecum, or a subpoena for production of evidence, after White House staff members were charged with conspiracy to defraud the U.S. Nixon challenged the subpoena, but the Court ruled against his request to quash the subpoena and also recognized the U.S. attorney general's authority to appoint a special prosecutor.
Meanwhile, there have been calls for Smith to ask the U.S. Court of Appeals for the 11th Circuit to remove Cannon from Trump's case, which Smith has yet to act on.
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"I almost hope Judge Cannon grants Donald Trump's motion to dismiss his case because Jack Smith will absolutely appeal her ruling and he will win on appeal," Kirschner said Thursday. "But even more importantly, it may finally give Jack Smith what he thinks he needs to file a motion to recuse—a motion to remove Judge Aileen Cannon from the Trump case and have appointed a fair, impartial, independent judge to preside over Donald Trump's federal prosecution down in Florida."
However, Kirschner told Newsweek, "I don't expect her to grant Trump's motion to dismiss or disqualify Jack Smith as special counsel."
Update 6/21/24, 12:02 p.m. ET: This article has been updated with additional information.
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Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
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