It is highly unlikely that prosecutor Jack Smith can stop a judge from indefinitely suspending former President Donald Trump’s classified documents case, a legal expert said.
Greg Germain, a law professor at Syracuse University in New York, was reacting to Tuesday’s decision by Judge Aileen Cannon, a Trump appointee, to postpone the trial, citing legal disputes around classified evidence. Cannon said there were eight outstanding substantive pending motions for her to rule on and predicted it will take until at least late July.
“Jack Smith is clearly frustrated, but seeking to remove a judge or overturn a scheduling order would not be easy,” Germain told Newsweek.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
Germain said that as Cannon’s suspension is interlocutory, or done provisionally, there is no right for Smith to appeal.
“He could file an interlocutory appeal request, but it would be up to the appellate court whether they would hear it,” Germain said. “It would be very hard to overturn a scheduling order because courts have broad control over their own calendars.”
Judges make interlocutory orders during a court proceeding and are not final, so they cannot be appealed.
Germain added that there are “serious questions about whether Judge Cannon is biased or incompetent.”
Cannon’s ruling effectively spoiled Smith’s effort to start the trial before the November election, a priority for Democrats and even some Republicans who say they would like to know the outcome of the cases against Trump—the presumptive GOP presidential nominee—before they vote.
Cannon is overseeing the case in which Trump is accused of illegally retaining classified documents, hoarding them at his Mar-a-Lago resort in Florida and obstructing attempts by federal officials to retrieve them.
Trump has pleaded not guilty to the charges. He has denied any wrongdoing in the case and has said the documents he retained were personal.
It is unknown whether the case will begin before the November 2024 presidential election.
If elected, Trump has a number of options to kill the trial, including pardoning himself or appointing a favorable attorney general to drop the charges.
Newsweek sought email comment from Trump’s attorney and from Smith and Cannon’s offices on Thursday.
Peter Shane, a law professor at New York University, told Newsweek that anyone “observing the snail’s pace at which Judge Cannon has been handling the documents case” will not be surprised by her decision to suspend proceedings.
Cannon and Smith have sparred extensively about Cannon’s proposed jury instructions, which would allow the jury to conclude that Trump had the right to retain presidential records as personal items.
Smith has strongly objected to the proposed instructions and warned Cannon that he would appeal if she didn’t change the wording.
In a ruling on April 4, Cannon called Smith’s response “unprecedented and unjust.”
Uncommon Knowledge
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.