OPINION: This article may contain commentary which reflects the author's opinion.
Special Counsel Jack Smith is attempting, in a new court filing with U.S. District Judge Aileen Cannon, to convince her to rule against former President Donald Trump’s motion for document production by citing a case she previously won as a federal prosecutor.
Cannon, “who was nominated to the bench by Trump, is due to decide on whether the former president’s counsel should receive a host of government documents to try to prove their complaint that the charges against the presumed 2024 Republican nominee are politically motivated,” Newsweek reported on Tuesday.
Trump’s team is seeking to compel the Department of Justice to release additional materials, even though they have already obtained 1.3 million documents. According to The Daily Beast, they are asserting that the Biden administration is conducting a “selective prosecution” in the investigation, to which Trump has pleaded not guilty to 40 charges.
Smith views the action by Trump and his legal team as their most recent attempt to delay the trial, as the former president wants to extend it past the 2024 election. If Trump emerges victorious, there is a possibility that he could instruct the DOJ to dismiss the federal classified documents case against him upon assuming office.
Newsweek adds: “In February court filings, Smith’s team has noted that Cannon—who has frequently faced criticism for her rulings that have favored Trump in the federal case— previously won a case while arguing that such fishing expeditions cannot take place without credible evidence. In 2015, while working as a federal prosecutor in South Florida, Cannon worked on a sting operation that saw two men arrested for plotting to rob a fake stash house containing half a million dollars worth of cocaine with AK-47s. One of the men tried to appeal his conviction based on the argument he was subject to an unfair “selective prosecution” as the majority of stash house stings target Black and Hispanic people.”
The 11th Circuit Court of Appeals ultimately ruled in favor of the federal prosecutors in 2021. By this time, Cannon had been promoted to the bench. The appeals court cited two cases that established the requirement for defendants to present evidence before being eligible to get discovery to support their allegations of persecution.
“Most of the motion to compel is devoted to the defendant’s request for discovery to support their unfounded allegation that the investigation and prosecution of this case have been tainted by political bias, which is a straightforward claim of selective prosecution governed by rigorous discovery standards,” Smith wrote.
“A request to discover such material is, instead, ‘governed by well-settled and binding precedent in [Armstrong] and United States v. Jordan,” Smith noted further, about the previous federal court rulings.
“That precedent imposes a ‘rigorous standard’ requiring a defendant to produce some evidence tending to show the existence of the essential elements of a selective prosecution claim—discriminatory effect and discriminatory purpose,'” the filing argued further.
Catherine Ross, a professor emeritus from George Washington University Law School, commended Smith for proposing that Cannon should deny Trump’s team access to documents to support their claims of “selective prosecution,” referring to a case she had previously been involved in.
“It’s a brilliant maneuver, particularly with a judge who had so little trial background,” Ross told The Daily Beast.
“It’s not quite the same as confronting a judge with an opinion they wrote or joined. I don’t think selective prosecution comes up often. There are very few people who can pass the laugh test on claiming that. I think they have her locked in a pretty tight spot—if she were a normal judge,” she claimed.
Trump claimed last week that he was being victimized by a “two-tiered” system after special counsel Robert Hur refused to file charges against President Joe Biden over his similar mishandling of classified information.
