According to legal analysts (AGAIN), Judge Aileen Cannon’s rejection of Special Counsel Jack Smith’s request to seal redacted discovery documents from Donald Trump and his lawyers has pissed Smith off. The long and short of this ruling is that Donald Trump can obtain the names of witnesses and government personnel (FBI agents) who are a part of the Mar-A-Lago classified documents case. Everybody and their brother knows that Trump will use this information for witness intimidation, and Smith says that is already happening (the government is supposedly investigating the witness tampering that is ongoing in this case). Smith made this plain in his request to Cannon, and she basically dismissed it all. Once again, Smith and other lawyers have stated that Cannon made a “clear error” in her ruling, and Smith has asked her to reconsider her ruling.
According to legal analysts, “clear error” is just what it states. Cannon has committed another whopping error in Trump’s favor, and the betting is that Smith may go to the 11th Circuit Court of Appeals over this matter.
Here is what Smith states is a “clear error”:
“That discovery material, if publicly docketed in unredacted form as the Court has ordered, would disclose the identities of numerous potential witnesses, along with the substance of the statements they made to the FBI or the grand jury, exposing them to significant and immediate risks of threats, intimidation, and harassment, as has already happened to witnesses, law enforcement agents, judicial officers, and Department of Justice employees whose identities have been disclosed in cases in which defendant Trump is involved,” Smith wrote.
I don’t think I need to list how times Trump has already attacked the law clerk, prosecutors, and judge in the E. Jean Carrol defamation case?
Once again, I will lean in to what one legal analyst has stated about Judge Cannon’s multiple errors and egregious rulings:
As for Smith’s motion to reconsider, as noted by Brookings Fellow Institute legal analyst Norm Eisen on Friday on X.com, the motion for reconsideration could have big implications: Cannon already has “two strikes” against her.
The first strike, Eisen posited, stems from the time the Eleventh Circuit preliminarily reversed a stay Cannon imposed barring the government from using over 100 documents with classified markings found at Mar-a-Lago for their investigation. The second time arrived when the circuit permanently reversed her appointment of a special master.
If reconsideration goes badly for Smith, which I expect it will, one possible remedy for Jack Smith is to file for a writ of mandamus.
A (writ of) mandamus is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion. See e.g. Cheney v. United States Dist. Court For D.C. (2004).According to the U.S. Department of Justice, "Mandamus is an extraordinary remedy, which should only be used in exceptional circumstances of peculiar emergency or public importance."
Mandamus at the Federal Level
In federal courts, these orders most frequently appear when a party to a suit wants to appeal a judge's decision but is blocked by rules against interlocutory appeals. Instead of appealing directly, the party simply sues the judge, seeking a mandamus compelling the judge to correct their earlier mistake. Generally, this type of indirect appeal is only available if the party has no alternative means of seeking review.
This sounds like going to the 11th Circuit Court of Appeals to order Cannon to do her damn job and protect witnesses from intimidation. Would Smith go this route? I don’t know. I’m not a lawyer (damn obvious by now), but I wonder if Smith might just go to the 11th Circuit and ask for Cannon’s replacement on this case?
It takes a lot for a higher court to step in and remove a lower court judge, but if Cannon isn’t going to protect witnesses in her court, isn’t that another really egregious error?