Why Jack Smith Didn’t Ask to Remove Aileen Cannon: Analysts

Special Counsel Jack Smith has asked a federal appeals court to reverse U.S. District Judge Aileen Cannon’s dismissal of the classified documents indictment against former President Donald Trump, although prosecutors are not seeking to remove the judge from the case.
The appeal, filed Monday, argues that Cannon made a mistake when tossing the indictment on the grounds that Smith was illegally appointed to prosecute Trump’s case where the former president was facing 40 felony counts related to allegations that he withheld classified documents after leaving the White House in January 2021.
Cannon dismissed the case on July 15, a move that bewildered many legal experts and fueled accusations that the Trump-appointed judge was partial toward the former president. But in his appeal Monday, Smith refrained from asking that Trump’s indictment be moved to another judge, a decision that MSNBC analyst Barbara McQuade told Newsweek was likely made in an effort to “return public trust” to the Justice Department, which has been withering in recent years.
“Asking to remove a judge on the basis of bias is a very significant accusation,” McQuade, a former U.S. attorney for the Eastern District of Michigan, told Newsweek over email Monday. “A judge’s decision against your position does not make her biased.”
“In this case, the decisions were so profoundly outside of the norms, that I think Smith had to at least consider making this request,” McQuade added. “However, a consistent theme throughout this administration has been an effort to return independence and public trust to the Department of Justice. Asking the court to remove Judge Cannon would have invited critics to accuse DOJ of playing partisan politics.”
Smith wrote in his motion to the 11th U.S. Circuit Court of Appeals that Cannon’s dismissal is “at odds with widespread and longstanding appointment practices in the Department of Justice and across the government.” Prosecutors also wrote that if the ruling is allowed to stand, it could “jeopardize the longstanding operation of the Justice Department and call into question hundreds of appointments throughout the Executive Branch.”
“The Attorney General validly appointed the Special Counsel, who is also properly funded,” read the appeal, which also pointed to four current statutes related to the attorney general’s authority to name special counsels.
There is a possibility that a federal appeals panel could remove Cannon from the case in its decision, and McQuade added that “reason lines can disagree” on whether Smith made the “right decision” by not requesting a new judge. But former federal prosecutor and elected state attorney Michael McAuliffe said that any decisions about judicial re-assignment are separate from the key argument at hand.
“Winning the appeal and having a case at all to litigate is the special counsel’s primary goal,” McAuliffe wrote in an email to Newsweek on Monday.
“The substance of Judge Cannon’s order is the subject of the appeal and the legal briefs,” he added. “The reassignment issue isn’t ripe yet. The case needs to be reinstated by a reversal of the trial court’s dismissal before any assignment issue would or even could be addressed by the appeals court.”
Former federal prosecutor Neama Rahmani agreed that Smith’s “immediate focus” has to remain on overturning Cannon’s dismissal.
“The burden to disqualify Judge Cannon is higher, and Smith may not want to fight that fight right now,” Rahmani told Newsweek over email. “Disqualification of a trial judge is appropriate when their conduct reasonably gives rise to the appearance of impropriety or lack of impartiality. Cannon’s surprising ruling is yet another bad ruling by a bad judge.”
“At some point, the Eleventh Circuit may have to step in and remove her. But Smith wants to pick his battles right now, so that’s an argument for another day,” he added.
Several experts have cast doubt on Cannon’s reasoning behind dismissing the case. Legal analyst Norman Eisen, who served as counsel to the House Judiciary Committee during Trump’s first impeachment trial in 2019, called Cannon’s order “totally lawless” in a string of social media posts Monday, adding that he believes the 11th Circuit of Appeals “should” remove the judge from the case.
Rahmani also expressed doubt over Cannon’s ruling, writing to Newsweek that he was “stunned” that the judge found Smith’s appointment unconstitutional.
“Even though Cannon says it’s limited to this case, her ruling casts doubt upon the appointment of special counsels in other cases, most notably Hunter Biden,” Rahmani said. “She could have easily dismissed the case on presidential immunity instead of ignoring decades of precedent by saying Smith’s appointment was unconstitutional.”
He added that he “wouldn’t be surprised if her order is overturned by the Eleventh Circuit, which would be her third reversal in the Trump case.”