Jack Smith Basically Has One Option to Save the Classified Documents Case
Special counsel Jack Smith is in a bind. While his Jan. 6–related indictment of Donald Trump is stalled until the Supreme Court weighs in, Florida District Court Judge Aileen Cannon gutted Smith’s remaining opportunity to take Trump to trial before the November election—in this case, over allegedly hoarding classified documents. On the face of it, Smith’s hands are tied, but there is one rare legal maneuver he could try to force Cannon’s hand.
It’s called a writ of mandamus, and it’s a centuries-old rule that allows a litigant to bypass their assigned district court judge and go directly to a court of appeals to ask for a court order mandating a judge to correct any abuse of discretion and force them to act according to their judicial duties. It’s essentially a legal slap on the wrist, but it’s rarely used because district court judges are typically given a lot of leeway to run their dockets and appellate courts are loath to get involved.
This is, however, hardly a typical situation, with a former U.S. president facing criminal charges—and Cannon isn’t exactly an ordinary judge, either, having been appointed to her current seat by the defendant. This, coupled with Cannon’s handling of the classified documents case thus far, has led Glenn Danas, an appeals expert and partner at Clarkson Law Firm, to think a writ of mandamus could be in Smith’s reach.
“It seems there’s an appearance of home cooking, because [Trump] appointed Judge Cannon and she is very young and kind of inexperienced,” Danas told Slate. “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.”
... But in order for Smith’s writ to have any chance of consideration by the appellate court, he must prove there is no other adequate legal remedy available. Realistically, Danas and McMunigal don’t think there is one, since once a case is assigned to a judge, technically almost no decision they make can be appealed until the final jury verdict is reached. (A litigant can file an interlocutory appeal if they dispute a judge’s ruling before trial, but it would go to Cannon first, and only if she rejects it can the appeal proceed to the appellate court.
The same process applies if Smith were to ask for a new judge. More often than not, appellate courts don’t like to get involved in matters like these.)
“You have to make a case that if the 11th Circuit Court of Appeals doesn’t jump in, you’re going to suffer some sort of harm that can’t be fixed later,” said Danas. “It might be something like an invasion of privilege or maybe disqualification of counsel.” It boils down to showing the appellate court that Cannon has abused her discretion in a way that’s permanently going to damage Smith’s case. And one way the special counsel could achieve this is by simply admitting he wants to take Trump to trial before the November election.
The special counsel has never explicitly said in public statements or court filings that he wants a speedy trial for Trump before the presidential election, likely in an effort to evade any accusations of bias or ill motive. (Instead, Smith has said there is a “national interest” in seeing Trump’s charges “resolved promptly.”) However, given the gravity of his classified documents case and Cannon’s recent decision to eliminate a trial date, Danas believes Smith could seriously consider showing his cards. “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; if not on a fast track, then at least on a normal track.’ ”
Through all rungs of the country’s judicial system, maintaining a sense of fairness is a major concern, and if Smith argues Cannon is indulging in an extraordinary amount of delay in order to push this trial past the November election, which helps Trump, it could convince the appellate court to consider his writ.
“If I were working on this, I would file a writ of mandamus ASAP,” said Danas.
2 syllable words are hard, 4 syllable words impossible.
It would be nice to see Smith try something, anything. Where's Merrick?