Jack Smith Laid a Trap for Trump’s Mar-a-Lago Judge. Cannon Didn’t Take It.

The MAGA-friendly judge overseeing Donald Trump’s trial for hoarding classified documents at Mar-a-Lago has handed prosecutors a minor victory on Thursday. But she also refused to take the bait on a trap that could have very well led to her removal from the case.

U.S. District Judge Aileen M. Cannon on Thursday rejected the former president’s bid to dismiss the entire case on the faulty premise that the Department of Justice had no right to turn a bureaucratic spat over presidential records into a criminal case.

But perhaps more importantly, Cannon refused to go down a legal path that DOJ Special Counsel Jack Smith invited her to travel, with Cannon refusing to issue a separate court order on a related issue—a ruling that Smith could have formally appealed and potentially utilized to get Cannon knocked off the case.

Jack Smith Tracks Unhinged Origin of Judge Cannon’s Latest Trump Defense

That issue involves Trump’s latest defense strategy, one that asserts he has unchecked powers to declare any government document a “personal” record, thus undercutting any allegation that he broke the law when he boxed up national secrets and shipped them from the White House to his oceanside Florida estate and refused to turn them over when asked by the National Archives. As Smith laid out earlier this week, it’s a far-fetched legal theory that started with conservative activist Tom Fitton and made its way to Trump and eventually the judge herself.

Cannon has given serious consideration to that idea, however.

On Mar. 18, she surprised legal scholars when she proposed draft jury instructions that would go one of two ways: either force the DOJ to allow jurors to review highly classified documents at trial, or tell jurors that they’d have to defer to Trump on making the call whether the records he took were personal or not.

In response to that declaration, Smith slammed Cannon on Tuesday for putting the case in jeopardy long before the trial even begins, asking her to “promptly” clarify her interpretation of the law.

That clarification looked like it could provide prosecutors a legal avenue to formally make an appeal to a higher court, which would allow Smith to take the matter up with the Eleventh Circuit Court of Appeals in Atlanta. (That court has already twice reversed Cannon’s prior decisions, and this third foray could have been used as an opportunity to yank Cannon off the case entirely.)

But Cannon didn’t fall for it.

Jack Smith’s Subtle Shot at Trump Mar-a-Lago Judge Aileen Cannon

On Thursday, she defended her inscrutable jury instruction ultimatum and called Smith’s request to issue an actual order “unprecedented and unjust.” She also defended her reasoning and couched it as merely floating an idea, one that “should not be misconstrued as declaring a final definition on any essential element or asserted defense in this case.”

“Nor should it be interpreted as anything other than what it was: a genuine attempt, in the context of the upcoming trial, to better understand the parties’ competing positions and the questions to be submitted to the jury in this complex case of first impression,” she wrote.

She then took a parting shot at prosecutors by saying they could still try to take it up with a higher court.

“As always, any party remains free to avail itself of whatever appellate options it sees fit to invoke, as permitted by law,” she wrote.

By refusing to issue an official order on her proposed jury instructions, Cannon has set the stage to potentially poison the trial at the last minute. Jury instructions are often finalized during the trial, and Cannon might decide to proceed in a way that wouldn’t give prosecutors time to file an appeal during the action—a scenario that would be seen as a decisive victory by Trump’s legal team, according to a person briefed on internal discussions who would only speak on condition of anonymity.

It’s unclear when the trial will take place. Cannon has routinely slowed down the case by briefly stopping FBI special agents from reviewing evidence and postponed key decisions.

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