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www.newsweek.com

Jack Smith lobs Judge Cannon's own argument back at her in court filing

Jack Smith cited a case that Judge Cannon was involved in to suggest she should rule against a motion from Donald Trump's lawyers.
www.newsweek.com www.newsweek.com

Jack Smith Lobs Judge Cannon's Own Argument Back at Her in Court Filing​

Published Feb 13, 2024 at 11:59 AM EST

Aileen Cannon Faces Being 'Politely' Recused: Former Prosecutor

By Ewan Palmer
News Reporter
FOLLOW​

Special Counsel Jack Smith cited a previous case that the judge overseeing the federal classified documents trial against Donald Trump was involved in to suggest she should rule against a motion from the former president's lawyers.

Judge Aileen Cannon, who was nominated to the bench by Trump, is due to decide on whether the former president's counsel should receive a host of government documents in order to try to prove their complaint that the charges against the presumed 2024 Republican nominee are politically motivated.

Trump's team is attempting to force the Department of Justice to hand over materials, despite already receiving 1.3 million documents, while arguing the investigation where Trump has pleaded not guilty to 40 charges is a Biden administration-led "selective prosecution," The Daily Beast reported.

The move is seen as the latest attempt for Trump and his legal team to delay the start of the trial as the former president hopes to push it beyond the 2024 election. If Trump wins the next election, he could order the DOJ to drop the federal classified documents case into him once he enters office.

In February court filings, Smith's team has noted that Cannon—who has frequently faced criticism for her rulings that have favored Trump in the federal case— previously won a case while arguing that such fishing expeditions cannot take place without credible evidence.

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In 2015, while working as a federal prosecutor in South Florida, Cannon worked on a sting operation that saw two men arrested for plotting to rob a fake stash house containing half a million dollars worth of cocaine with AK-47s.

One of the men tried to appeal his conviction based on the argument he was subject to an unfair "selective prosecution" as the majority of stash house stings target Black and Hispanic people.

The 11th Circuit Court of Appeals eventually ruled in the federal prosecutors' favor in 2021, by which point Cannon had been elevated to the bench. The appeals court pointed to two cases that established that a defendant must provide evidence before they can receive discovery to try to back up their claims of persecution.

"Most of the motion to compel is devoted to the defendants' request for discovery to support their unfounded allegation that the investigation and prosecution of this case have been tainted by political bias, which is a straightforward claim of selective prosecution governed by rigorous discovery standards," Smith wrote.

"A request to discover such material is, instead, 'governed by well-settled and binding precedent in [Armstrong] and United States v. Jordan," Smith added in reference to the previous court rulings.

"That precedent imposes a 'rigorous standard' requiring 'a defendant to produce some evidence tending to show the existence of the essential elements of a selective prosecution claim—discriminatory effect and discriminatory purpose.'"

Jack Smith in DC

Special Counsel Jack Smith speaks at the Justice Department on June 9, 2023, in Washington, D.C. Smith cited a case Judge Aileen Cannon previously worked on in court filings.CHIP SOMODEVILLA/GETTY IMAGES

Catherine Ross, a professor emeritus at George Washington University Law School, praised Smith's attempt to suggest Cannon must not allow Trump's team access to documents to back up their "selective prosecution" claims while citing a case she previously worked on.

"It's a brilliant maneuver, and particularly with a judge who had so little trial background," Ross told The Daily Beast.

"It's not quite the same as confronting a judge with an opinion they wrote or joined. I don't think selective prosecution comes up often. There are very few people who can pass the laugh test on claiming that. I think they have her locked in a pretty tight spot—if she were a normal judge."

Robert A. Sanders, who teaches law at the University of New Haven, also described the move as "smart lawyering."

"The message is: Remember what you did earlier? And how you got jammed up for it — when you went in a direction no one in the world thought was right? Think about what you're going to do this time."

It is unclear when Cannon will rule on whether Trump's legal team should have access to their documents as requested.

In a statement after Special Counsel Robert Hur declined to push charges against President Joe Biden over his handling of classified documents, Trump reiterated his complaint that the charges against him are politically motivated.

"THIS HAS NOW PROVEN TO BE A TWO-TIERED SYSTEM OF JUSTICE AND UNCONSTITUTIONAL SELECTIVE PROSECUTION!" Trump said. "Deranged Jack Smith should drop this Case immediately. ELECTION INTERFERENCE."[/LEFT]
 
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