Special Counsel Jack Smith has found himself in a precarious position regarding the latest decision from Judge Aileen Cannon in the trial over former President Donald Trump’s handling of classified documents.

Liberal legal experts have voiced concerns over the complexity Smith faces should he contest Cannon’s recent directives. Cannon, appointed by Trump, has come under scrutiny for a series of rulings that seemingly favor the former president.

On Tuesday Cannon handed a win to Trump in his classified documents case, telling special counsel Jack Smith to effectively hand over all classified materials to a jury for scrutiny, or risk a Trump acquittal by refusing to do so.

The controversy centers on Trump’s defense that the Presidential Records Act grants him the authority to designate classified materials as personal property. The defense formed the basis of a motion to dismiss the charges against Trump for removing classified documents from the White House in January 2021.

Cannon’s recent request for “competing scenarios” from both Trump’s and Smith’s legal teams for jury instructions about the Presidential Records Act has been criticized, however. The request could lead the jury to lean towards Trump’s interpretation or potentially result in Cannon dismissing the case, limiting Smith’s options for appeal.

“Judge Cannon’s bizarre ruling is yet another instance that clearly benefits Trump and demonstrates that she is in over her head as a judge,” legal expert, Neama Rahmani, a former federal prosecutor, told Newsweek.
“The issue is a question of law that she should decide, not a question of fact for the jury.” Rahmani suggested that Smith is trapped between attempting to remove Cannon over this issue or risking further delays in the trial.
“Smith is in a no-win situation because an appeal or writ will delay the trial even further, but he can’t allow Cannon to abdicate her responsibility and make the possibility of jury nullification even more real.”

Harry Litman, a former Deputy Assistant Attorney General, wrote in the LA Times, “Cannon may have hit upon a strategy that gives Trump the delay he wants and then dismisses the case once a jury has been sworn in — while never exposing herself to being reined in or forced off the case by the 11th Circuit.”