Special counsel Jack Smith is palpably frustrated with Judge Aileen Cannon after several confounding rulings — and lengthy bouts of judicial indecision — have threatened to derail his case against Donald Trump for stashing classified secrets at Mar-a-Lago.
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The long-simmering tension came to a boil this week in a court filing in which Smith's team sharply questioned the judge's willingness to entertain a legal theory that Trump has advanced in a bid to dismiss the case. Prosecutors called the theory “pure fiction,” and their submission featured tartly worded threats to appeal any adverse decision. They also demanded that Cannon decide quickly to prevent her from hamstringing the prosecution on the eve of trial.
Cannon shot back Thursday, revealing his own frustrations with Smith’s team, saying in a prickly order that the demand for a hurt decision was “unprecedented and unjust.”
The strained dynamic between Smith and Cannon — a Trump nominee confirmed by the Senate in 2020 — has in some ways overshadowed the serious felony counts against Trump, who is facing dozens of charges that he hoarded military intelligence in his South Florida home and then tried to obstruct the government from reclaiming those records. The judge's handling of the case has led to a furious public debate about her intentions and her inexperience.
Smith's supporters have railed against Cannon's odd and sometimes inexplicable decisions, voicing their own frustrations that Smith hasn't pushed to get the judge booted from the case.
“It's clear that she is going in a ridiculous direction,” said Nancy Gertner, a retired federal judge from Massachusetts, who says Smith should move for Cannon's recusal from the case. “The government could be without recourse after a trial begins. …I don't even know why they indulged her. …I think they need to stop playing games and move to disqualify her.”
Persuading an appeals court to remove a trial judge is usually a quixotic quest. Appeals courts generally grant that relief only in the most extraordinary circumstances — such as if a trial judge repeatedly defies direct orders from a higher court.
Meanwhile, Trump has moved to capitalize on the obvious tension, heaping praise on Cannon — a “highly respected Judge,” he intoned on his social media platform, Truth Social, Thursday morning. Smith, Trump said, is “obviously trying to ‘play the ref,’” a comment he made while employing the same tactic for which he had just criticized the special counsel.