Special counsel Jack Smith's blistering response this week to a request by Judge Aileen Cannon was one of several instances over the last 10 months challenging her competency or impartiality in a case involving former President Trump's handling of classified secrets.
Why it matters: Cannon has left unresolved numerous issues that would move the case forward, raising the likelihood it drags beyond the November election. The pace and decision-making has fueled critics' concerns that the Trump-appointed judge is intentionally slow-walking the case.
- There's still no trial start date. The scheduled May 20 is unlikely to happen due to myriad unresolved matters.
- Since Cannon's hearing on the trial schedule last month, she has provided no additional indication of when it may start, though Smith has repeatedly pressed for an earlier timeline.
- If Trump is elected president and the trial is still pending, he's expected to order the Justice Department to drop the charges. His legal team has successfully delayed proceedings in many of the cases, and Cannon's decisions (or lack-thereof) have also contributed.
Friction point: Smith took issue this week with Cannon's recent request for dueling jury instructions from the prosecution and defense connected to the defense's Presidential Records Act argument, saying it rested on a legal theory that was "fundamentally flawed" and was outright wrong.
- The defense has said the PRA allowed the former president to designate presidential documents as personal.
- In an unusual sign of his growing exasperation with Cannon's handling of the case, Smith signaled intent to appeal to the 11th Circuit if Cannon was open to Trump's Presidential Records Act argument via jury instructions. An appeal would all but certainly delay the trial.
While denying another Trump motion to dismiss the case based on the PRA Thursday, Cannon separately fired back at Smith's request on jury instructions, calling it "unprecedented and unjust."
- Cannon's jury instructions order also "left open another possibility: that she herself might acquit the former president near the end of the trial by summarily declaring that the government had failed to prove its case," The New York Times reported.
State of play: The eyebrow-raising incidents involving Cannon include delaying rulings expected to be standard procedure, carving out exceptions that wouldn't be granted to a private citizen and Trump's apparent fondness of her.
- Legal experts have raised questions about her qualifications to continue overseeing the case and reasons behind delays.
- "At this stage in the game, her incompetence is so gross that I think it clearly creates the perception of partiality and her attempt to put her thumb on the scale," Tyler Cobb, who was on Trump's administration's legal team, told CNN on Wednesday.
- Cannon is taking the case in a "ridiculous direction," Nancy Gertner, a retired federal judge from Massachusetts, told Politico. She said the Justice Department should move to disqualify her — which itself would be a time suck.
The more generous view of Cannon's activity on the case is that she's proceeding carefully because of its complexity — as any relatively new judge might. The case, given its historic nature, is also under an unprecedented microscope.
- "I can assure you that in the background there is a great deal of judicial work going on," Cannon said in March. "So while it may not appear on the surface that anything is happening, there is a ton of work being done in the background."
Between the lines: Trump, who's lambasted most of the judges overseeing civil or criminal cases against him, on Thursday defended Cannon, saying that Smith "should be sanctioned or censured for the way he is attacking a highly respected judge."
- His comments further complicate perceptions of Cannon's objectivity as a judge as well as the defense's further politicization of the case, the Washington Post reported.
Context: Cannon is relatively new to the federal bench, appointed by Trump during his final months as president.
- From 2013 to 2020, she worked as an assistant U.S. attorney for the Southern District of Florida in the major crimes and appellate divisions.
- In 2005, she joined the Federalist Society, a conservative legal group whose members have included most of the conservative Justices on the Supreme Court, including Amy Coney Barrett and Samuel Alito.
- Prior to taking on Trump's case, Cannon had only presided over four criminal trials as a federal judge.
Flashback: In 2022, Cannon's accepted Trump's bid in a separate lawsuit for a special master to review evidence seized by the FBI and blocked federal prosecutors from reviewing the materials.
- The move was criticized by legal experts as an extraordinary overreach by a federal district judge, and a federal appeals court ultimately halted the special master appointment.
- "We our faced with a choice: apply our usual test; drastically expand the availability of equitable jurisdiction for every subject of a search warrant; or carve out an unprecedented exception in our law for former presidents," the appeals judges said in a unanimous opinion. "We choose the first option."
Go deeper: Judge rejects another Trump bid to dismiss classified docs case
