Special counsel Jack Smith has one hail Mary chance at bypassing Judge Aileen Cannon to get his classified documents case against Donald Trump tried before the election, an expert wrote.
And it's a rare move based on a centuries-old law.
A legal expert told Slate Smith could choose to file a writ of mandamus, an ancient rule that could allow him to skip Cannon and go straight to the court of appeals, asking it to force the judge to reverse her actions.
Slate reported it’s essentially a “slap on the wrist,” but it’s “rarely used because district court judges are typically given a lot of leeway to run their dockets and appellate courts are loath to get involved.”
But after a series of decisions experts have deemed questionable, most recently putting the trial on indefinite hold because of a backlog of legal motions, Smith may have no choice.
Trump is facing charges related to the illegal storage of multiple highly-classified documents at his Mar-a-Lago estate in Florida.
Cannon was appointed to her seat by Trump.
“It seems there’s an appearance of home cooking, because [Trump] appointed Judge Cannon and she is very young and kind of inexperienced,” said legal appeals expert Glenn Danas.
“It seems like she’s going out of her way to afford the defendants an extraordinary amount of time and her own judicial resources to get every single thing that they want done in a way that seems unusual.”
Cannon has been accused of slow-walking the case, pushing back pretrial deadlines and taking her time in considering motions.
“That’s been a gift to Trump’s defense team, which wants to delay, delay, and delay some more in order to put off having any criminal trial before the November election — presumably because if Trump wins, he could ask his Department of Justice to drop Smith’s indictments against him,” Slate wrote.
The trial had been initially set to start next week.
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The writ of mandamus is still a long shot though, the expert said.
“You have to make a case that if the 11th Circuit Court of Appeals doesn’t jump in, you’re going to suffer some sort of harm that can’t be fixed later,” said Danas.
“It might be something like an invasion of privilege or maybe disqualification of counsel.”
But, he added, “If I were working on this, I would file a writ of mandamus ASAP.’
