Special Counsel, Jack Smith, Donald Trump
Photo credit: Illustration by WhoWhatWhy from Tyler Merbler / Flickr (CC BY 2.0 DEED), DOJ / YouTube, Gage Skidmore / Flickr (CC BY-SA 2.0 DEED), and Documentcloud.

Why is Aileen Cannon the one judge Donald Trump has not insulted or threatened? Because she keeps ruling in his favor.

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If special counsel Jack Smith were a sociopath, he’d probably take to social media to publish information about Aileen Cannon’s family or repeatedly insinuate that the judge in the stolen documents case against Donald Trump is biased. He’d even be able to make a solid case. After all, Cannon only got the job because she was appointed by the former president and has made some baffling pre-trial rulings in his favor.

Since Smith is not, however, a sociopath, he has to use regular legal channels to challenge one of the judge’s most bizarre decisions. 

Last month, she issued an order in which she seemed to simply accept the argument of Trump’s legal team that the former president was allowed to retain classified documents simply by claiming they were his personal property. 

At issue is Cannon’s request for both parties to weigh in on proposed jury instructions. The judge seemed to indicate that she would simply accept Trump’s defense that he could declare classified records as his property.

In a late-night filing, Smith argued that this assertion would be “meritless” and “fatally undermined” by the evidence and testimonies that the government has presented. 

He wrote that the legal premise that such jury instructions would be based on is not only wrong, but that telling jurors to accept them would also “distort the trial.”

Furthermore, Smith urged Cannon to rule on the issue quickly so that he can appeal to a higher court, which has already overturned a couple of her decisions. 

“[It] is vitally important that the Court promptly decide whether the unstated legal premise underlying the recent order does, in the Court’s view, represent a ‘correct formulation of the law,’” Smith wrote.

If she does rule in Trump’s favor in terms of what to include in the jury instructions, she must “inform the parties of that decision well in advance of trial” because the government must have the opportunity to file an appeal. 

The special counsel also noted that the former president “has never represented to this Court that he in fact designated the classified documents as personal. He made no such claim in his motion to dismiss, in his reply, or at the hearing on March 14, 2024, despite every opportunity and every incentive to do so.”

In other words, in her proposed jury instructions, Cannon would be giving Trump a massive out and make it much more difficult for the prosecution to win at trial. 

Generally, it is believed that this is the criminal case in which the former president is in the greatest legal jeopardy because the evidence is so overwhelming and the law is very clear. And while it seems obvious that Trump tried to overturn the results of the 2020 election (which is what the cases in Washington, DC, and Georgia are about), the statutes there are murkier.

Fortunately for him, an apparent ally was assigned to the documents case.

Therefore, it is no wonder that Cannon is the one judge Trump has not yet insulted or threatened.

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