Jack Smith's Two Options if Aileen Cannon Dismisses Trump Charges

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."

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.

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."

A spokesperson for Special Counsel Jack Smith declined to comment when contacted by Newsweek.

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.

Update 3/15/24, 3:15 a.m. ET: This story has been updated to note the office of Special Counsel Jack Smith declined to comment when contacted by Newsweek.