Media applauds Jack Smith's "withering" response to Judge Cannon
Would it have applauded a similar response to Judge Chutkan?
For years, the Washington Post and other anti-Trump mainstream media organs have been blasting Donald Trump for his attacks on judges who hear his cases. The criticism is often justified. Trump should not insult a judge every time he or she rules against him on a particular matter. (However, Trump’s bitter attacks on the New York state court judge who fined him almost half a billion dollars for overstating the value of his properties are understandable and seem justified.)
The Biden Justice Department’s prosecution of Trump in Florida federal court presents a different twist on the theme of criticizing a judge in an unusual, and maybe unprecedented, manner. In that case, it isn’t Trump who is showing annoyance with the judge, Aileen Cannon. It’s Jack Smith, the prosecutor, in a response to her request for draft jury instructions he doesn’t think fit the case.
And, to the surprise of no one, Smith is receiving praise from the same media outlets that rip Trump for “going after” judges.
Let’s stipulate that there are important differences between Trump’s shots at judges and Smith’s shot at Judge Cannon. Trump’s are personal and nasty. Smith’s isn’t, though it’s bitter enough.
But the complaints of Trump and Smith have two things in common. First in both cases they are directed at judge[s]. Second, the tone of the complaints is highly unusual, if not unprecedented.
Let’s turn now to the specifics of Judge Cannon’s request for jury instructions and Smith’s reaction thereto. Cannon requested two sets of jury instructions. The request was highly unusual as a procedural matter. Normally, parties don’t submit proposed jury instructions until right around the time of trial.
Why did Cannon depart from this practice? She says she did it to help her think through the implications for trial of a defense Trump has raised against the charge that he violated the Espionage Act by taking classified documents with him when he left office. The defense Trump is presenting relies on the Presidential Records Act (PRA).
To assist her in thinking this defense through, Judge Cannon sought jury instructions that would cover two scenarios. In one scenario, it is assumed that the PRA allows presidents to designate any document as personal at the end of a presidency. In the other scenario, a less blanket one, the jury is called on to determine which of the documents Trump retained are “personal” and which are “presidential.”
The assumption underlying the former scenario seems clearly at variance with the law, as I understand it. The latter one may also be based on an erroneous view of the case. But Cannon hasn’t embraced either one.
This doesn’t matter to Smith. He complied with the order to submit the proposed instructions, but expressed his displeasure with her request in no uncertain terms.
Here is how the Washington Post characterizes Smith’s filing.
Smith’s office late Tuesday night filed an especially withering response to Cannon’s request for proposed jury instructions. The response reads as a challenge to Cannon’s jurisprudence and raises the possibility that Smith might try to go around her as the case proceeds. . . .
Smith clearly [believes] that the PRA issue is a red herring. And he wasn’t mincing words in his filing. On six occasions he called the legal premise behind Cannon’s request wrong. He repeatedly implored her to deal with the matter expeditiously. And — perhaps most notably — he repeatedly floated the idea of appealing to the U.S. Court of Appeals for the 11th Circuit.
The Post cites Bradley Moss, a national security lawyer, who noted how unusual it is for a legal team to speak to a judge this way. Andy McCarthy says the same thing. And, for what it’s worth, the only time in four decades of practice that I saw the level of disgust Smith evinces in his filing was in a brief filed pro se.
Smith objects to any proposed instruction based on the PRA because “every witness who was asked [about Trump designating the documents as personal records or believing his removal of the documents made them persona] had never heard such a thing.” He added, “No witness recalled Trump espousing this theory until after the Judicial Watch president conveyed it to him in February 2022.”
But the case hasn’t been tried yet. If, at trial, the record turns out as Smith describes it, the judge might well agree with him that no instruction based on the PRA should be given. But at this point, Smith’s only genuine complaint, other than having to waste his time writing hypothetical jury instructions, is that Cannon may not be thinking about the case the way he would like her to.
The best way to counter that is to try, respectfully, to persuade the judge to see the case the way he does. It’s not to “repeatedly float the idea of appealing to the U.S. Court of Appeals for the 11th Circuit” or to “raise the possibility [of] trying to go around [Cannon] as the case proceeds.”
Smith knows he has nothing to appeal now. Therefore, he urged Cannon to give him a ruling that, if it doesn’t satisfy him, he can take to the court of appeals.
In an opinion rejecting Trump’s bid to have his Espionage Act case dismissed on PRA grounds, Cannon responded to Smith’s talk about an appeal this way:
To the extent the Special Counsel demands an anticipatory finalization of jury instructions prior to trial, prior to a charge conference, and prior to the presentation of trial defenses and evidence, the Court declines that demand as unprecedented and unjust.
Rightfully so.
As noted, the mainstream media has no problem with the tone of Smith’s filing. Its take is that the filing reflects Smith’s justified unhappiness with Judge Cannon.
In fact, the media has been after Cannon throughout the case. For example, E.J. Dionne of the Post accused her of “delivering the goods for her patron,” i.e. Trump.
Cannon’s media critics love pointing out that one of her early rulings in the case was reversed on appeal. But Judge Tanya Chutkan, the Trump-hating federal judge handling the D.C. case against the former president, had portions of her gag order against Trump reversed by the liberal D.C. Circuit. I have yet to see the Washington Post hold this against her.
Suppose that attorneys for Trump filed the kind of “withering” pleading in Chutkan’s court that Smith’s team filed in Cannon’s. Do you think outlets like the Post would abstain from attacking Trump and his lawyers for this?
I don’t. I think these organs — playing their accustomed role as cheerleaders in the lawfare being waged against Trump — would add that pleading to their list of Trump’s “unprecedented attacks on our judicial system.”
Pointing out that much of the major media along with various governmental agencies (especially DOJ) are on a relentless seek and destroy mission for Donald Trump is low-hanging fruit. Yet, I still appreciate how you methodically and logically show another example here with The Washington Post. Like you, I'm not a fan of Trump's crude and nasty behavior, but way too many of his critics have lost their minds and have adopted the end justifies any means. I find myself defending him even when there is so much to legitimately criticize because of this dangerous abuse of power. This one's a pretty mild example, but I like that you called it out.
Great post. The lawfare, discriminatory justice, and obvious election interference are bringing lots of chickens home to the Trump roost, as witness the $50 million haul at Mar a Lago, much of it from major donors who had favored Haley. Jim Dueholm