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Donald Trump
Aileen Cannon
Jack Smith
Florida
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Jack Smith's Two Options if Aileen Cannon Dismisses Trump Charges
Published Mar 14, 2024 at 1:08 PM EDT
Updated Mar 14, 2024 at 4:04 PM EDT
By James Bickerton
US News Reporter
FOLLOW
414
Special Counsel Jack Smith has two options if Florida Judge Aileen Cannon dismisses one or more of
the charges Donald Trump is facing in his classified documents case, according to a former district
attorney.

The presumptive 2024 Republican presidential nominee has pled not guilty to 40 felony charges over
claims he deliberately held on to classified documents after leaving the White House in January 2021
and then actively frustrated efforts to get them returned to the relevant authorities.

On Thursday Cannon, from the U.S. District Court for the Southern District of Florida, will consider two
motions brought by Trump's legal team arguing the charges should be thrown out. They are insisting
Trump had the legal right to retain the documents under the Presidential Records Act and also argue
the Espionage Act charges he faces are "unconstitutionally vague."

Speaking on his 'Stay Tuned with Preet' podcast, Preet Bharara, a lawyer and former U.S. attorney for
the Southern District of New York, described Trump's case as "not particularly meritorious." However
he added: "There's some debate about whether Judge Cannon has a finger on the scale in favor of
Donald Trump so we'll see."

READ MORE
Donald Trump ally's TikTok plan sparks new theory
Jack Smith caught in a bind as Aileen Cannon recusal calls grow
Donald Trump likely to face legal disappointment: Legal analyst
Earlier this week Judge Cannon granted Trump a 10-day delay in his classified documents case despite
strong objections from prosecutors. This was done on the basis that another of Trump's criminal
cases, in which he is accused of orchestrating the payment of hush money to a pornographic actress,
is due to get underway later this month. Trump has pled not guilty to all counts in this case and denies
wrongdoing.

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Should the charges against Trump be dismissed by Cannon, Bharara suggested Smith's legal team
could appeal the decision, seek to have her removed from the case for alleged bias or both.

He said: "If she does dismiss the charges Jack Smith and his team can appeal that decision. If there's
an acquittal in a case, the prosecution cannot appeal the acquittal by a jury because that would
violate double jeopardy. But dismissal of charges or of any counts by a judge is appealable to the
relevant circuit court and here it's the 11th Circuit Court of Appeals."

He also noted that "generally speaking" a recusal notion, to remove the judge from the case, can be
filed at any time. Bharara added: "I think there's a decent argument in favor strategically of asking for
recusal on top of asking for a dismissal to be reversed given the state of the law and given the lack of
merit of those motions.

"It's always fraught, it's generally not done on the basis of competence but done on the basis of some
perceived bias on the part of that judge given particular rulings that have been made and I think they
would have a reasonable basis to make that argument."

Newsweek has reached out to Special Counsel Smith for comment via the Justice Department's online
media enquiry form.

Jack Smith and Donald Trump

Special Counsel Jack Smith pictured at the Justice Department on August 1, 2023 in Washington, DC
(left) and Donald Trump speaking at an election-night watch party at Mar-a-Lago on March 05, 2024
in Palm Beach,... More
However appearing on Fox News, George Washington University law Professor Jonathan Turley
suggested Trump is likely to have his motions for dismissal rejected.

He commented: "I'm afraid I think he is likely to lose this claim for dismissal, but that doesn't mean
that he doesn't have some merit in his objections to these charges."

Trump is also facing criminal charges over allegations he broke the law attempting to overturn the
2020 presidential election both nationwide and in the state of Georgia specifically. He has pled not
guilty to all counts and insists the cases against him are politically motivated.

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About the writer
James Bickerton
FOLLOW
James Bickerton is a Newsweek U.S. News reporter based in London, U.K. His focus is covering U.S.
politics and world ... read more

To read how Newsweek uses AI as a newsroom tool, click here.

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