OPINION: This article may contain commentary which reflects the author’s opinion.
A federal judge has given former President Donald Trump a much-needed victory in his case brought by Jack Smith.
The special counsel wanted to force Trump into sharing files about his defense strategy for the case, particularly on if he wants to blame his attorneys as his defense, which many experts said would violate attorney-client privilege.
Katie Phang, a legal analyst for MSNBC, said that in nixing the request, U.S. District Judge Aileen Cannon dealt a significant blow to Smith.
“Judge Cannon enters an ORDER denying, without prejudice, Special Counsel’s Motion to Compel Disclosure Regarding Advice-of-Counsel Defense,” the expert said. “Cannon basically says that it’s too early in the litigation to consider forcing Donald Trump to have to disclose this information.”
Cannon’s order read, “Assuming the facts and circumstances in this case warrant an order compelling disclosure of an advice-of-counsel trial defense the Court determines that such a request is not amenable to proper consideration at this juncture, prior to at least partial resolution of pre-trial motions, transmission to Defendants of the Special Counsel’s exhibit and witness lists, and other disclosures as may become necessary.”
Former US Attorney for the Northern District of Alabama, Joyce Vance, said on X that Cannon will delay the case until after the election and may never allow it to take place.
“In the Mar-a-Lago case, Judge Cannon has just refused to enforce a routine deadline & it’s entirely clear she has no intention of letting this case go to trial before the election or possibly ever,” she wrote.
“So I think this is the key question because Trump’s overall strategy is one of delay, get everything past the election, hope that you win, and you can resolve everything from the Oval Office in your favor. And I think it’s been a little baffling to watch some of the judges like Aileen Cannon in the Florida Mar-a-Lago related criminal prosecution, where she has been playing slow ball trying to keep that case from going anywhere,” she said last week to Phang on MSNBC.
This is not the only case where Smith is having a tough time.
One of the three federal appeals court judges hearing arguments this month over whether Donald Trump as president is immune from prosecution over his actions about post-2020 election challenges pressed a prosecutor with special counsel Jack Smith’s team to answer a crucial question at one point during the hearing.
As reported by The Hill, Judge Karen Henderson questioned James Pearce, a prosecutor with Smith’s team, “over how the panel’s decision could prevent a torrent of legal matters brought against former presidents.”
“How do we write an opinion that would stop the floodgates?” she asked.
Pearce went on to argue that since the Watergate scandal involving then-President Richard Nixon, there has been “widespread societal recognition” that presidents are not immune from prosecution — though Nixon resigned from office and was never prosecuted for his alleged role in the scandal.
He also argued that the Biden administration’s investigations and prosecutions of Trump won’t mean a “seachange” of similar legal actions against future presidents. Rather, he claimed that Trump’s indictments merely reflect the “unprecedented nature” of the charges against him.
“Never in our nation’s history, until this case, has a president claimed immunity extends beyond his time in office,” Pearce said, though the Jan. 6 indictments stem from Trump’s time while still president. The charges against him involving his alleged improper retention of classified documents, however, fit Pearce’s argument, but that presumes that Trump’s actions violated federal law, including the broad powers he has to declassify documents under the Presidential Records Act.
At another point, Trump lawyer John Sauer pushed back on Judge Florence Pan after she “pointed out that Trump’s legal team made very different arguments when he was facing his second impeachment, saying that criminal prosecution lies with the courts,” The Hill reported.
He responded by saying whether a concession “may or may not have been made” at the time, it doesn’t have any effect because the current proceedings are “very different.”