Jack Smith Should Be ‘Very Worried’ About Trump Docs Case: Legal Expert


OPINION: This article may contain commentary which reflects the author's opinion.

A legal expert for CNN has given special counsel Jack Smith some bad news regarding his classified documents case against former President Donald Trump.

Following a three-page order by U.S. District Judge Aileen Cannon in which she reprimanded Smith for his most recent filing, analyst Elie Honig said he believes Smith should be “very worried.”

In the same order, Cannon denied Trump’s request to have the case dismissed because the Presidential Records Act should protect him, but she also ripped Smith.

Even as she ruled against Trump’s motion, Cannon’s three-page order also revealed her displeasure over Smith’s characterization of her order, suggesting this may not be the last such battle in the historic prosecution of a former president and the presumptive GOP presidential candidate.

“Where does this leave the timeline of this case, Elie?” asked CNN host Brianna Keilar.

“Well, a mess, in short,” he responded. “No way that this case was gonna get tried before the election. And now, I think we have other pending issues.”


Honig noted that other legal experts have speculated that Smith might appeal to the 11th Circuit to seek Cannon’s removal from the case. The 11th Circuit has previously vacated two Trump-friendly rulings made by Cannon in this case. However, Honig believes that Cannon’s ruling has all but thwarted that possibility.

“I actually think what the judge did today forecloses that, makes it impossible to do that because the judge said, ‘Well, we’re gonna decide when the trial happens, and maybe it’s something that will go to the jury,'” Honig continued.

“You really can’t appeal that if you’re Jack Smith. And by the way, Brie, this is why I think Jack Smith is concerned with today’s ruling. Although he won in the sense that the court did not dismiss the charges, if I’m Jack Smith – and I think Smith feels the same way – I’m very worried about this defense going to a jury because it’s confusing, because it’s complicated, because it’s technical. And prosecutors always want to tell a simple, straightforward story. And frankly, defendants want to muck things up,” he added.

“And as much as I think this defense lacks merit, I do think it could confuse a jury in a way that would worry me as a prosecutor,” he said.

Trump is currently facing 32 counts related to violating the Espionage Act, a World War I-era law that several legal and constitutional experts have criticized as unconstitutional and unfair (the U.S. Supreme Court upheld its constitutionality in 1919, though it limits free speech).

Smith claims that these charges stem from Trump’s purported possession of government documents and his alleged efforts to impede their recovery. The FBI uncovered the materials during a search warrant executed at Trump’s Mar-a-Lago residence.

Former Vice President Mike Pence and then-former senator and Vice President Joe Biden possessed similarly classified materials, but neither of them faced any charges. Former President Bill Clinton was found to have kept classified tapes in a sock drawer in his residence, but he wasn’t charged, either.


Also, neither Biden nor Pence had any legal standing to have possessed such materials, while Trump, as president, had the authority to declassify certain documents and materials.

In his legal filing that Cannon rejected, he claimed that the Presidential Records Act supersedes the Espionage Act, under which Smith charged him. But her ruling left open the possibility that Trump’s legal team could still argue that claim during his trial, whenever that takes place.

Also in her order, Cannon chastized Smith for seeking jury instructions way too early, “prior to trial, prior to a charge conference, and prior to the presentation of trial defenses and evidence.”