Special counsel Jack Smith has ripped District Court Judge Aileen Cannon in a tough-talking new filing for her suggestion former President Trump might have had some right to take hundreds of classified documents when he left the White House.
Smith trashed Cannon for even considering Trump’s often-repeated claim that the Presidential Records Act permitted him to designate classified documents as his own personal papers and override laws covering mishandling of national security information.
“The PRA should play no role in the trial at all,” Smith’s team wrote in a sharply worded 20-page filing. “If the court wrongly concludes that it does … it must inform the parties well in advance of trial.”
The bulldog federal prosecutor signals he may appeal Cannon’s rulings to a federal appeals court, which could slap her down or even remove her from the case.
“The government must be provided the opportunity to seek appellate review,” the prosecutors added.
Smith also noted that Trump never said in real time that he considered the documents to be his own personal records, suggesting that his claim about the Presidential Records Act is a red herring he made up after the fact.
“Trump’s effort to rely on the PRA is not based on fact … it was concocted more than a year after he left office,” Smith’s prosecutors wrote.
Cannon, whom Trump appointed to the court in 2020, has raised legal eyebrows with her handling of the documents case nearly every step of the way.
She has moved the case at a snail’s pace and has repeatedly refused to set a date for a trial before the November presidential election. Many legal analysts believe it is the most clear-cut case against Trump of the several brought against him since he left office.
Cannon did not immediately make a ruling on Smith’s midnight filing and it was unclear if the judge may tweak her previous, highly unusual order that asked Smith to offer proposed instructions to a future jury.
Trump has repeatedly claimed that the Presidential Records Act, a post-Watergate law that is not a criminal statute, gave him the right to take any documents he wanted when he left office in January 2021.
Prosecutors and virtually all legal analysts say the Espionage Act prohibits anyone, including a president, from mishandling classified documents.
Trump is accused in the documents case of taking hundreds of sensitive national security documents, including nuclear secrets, to Mar-a-Lago and defying efforts to get them back.
He stored them in ballrooms and bathrooms where thousands of guests roamed and flashed some of the documents to score political points against rivals like retired Gen. Mark Milley.
Two Mar-a-Lago workers are charged with helping him obstruct justice by moving the documents around to hide them from investigators and even Trump’s own defense lawyers.
Cannon, who was appointed by Trump, has been dragging her feet for months since Trump was indicted last year.
The South Florida federal judge, who has only tried a handful of cases, was already slapped down by the conservative 11th Circuit Court of Appeals when she tried to throw a wrench in the probe by appointing a special master to oversee prosecutors’ use of documents.
